Chapter 1 - Majority Report
1.1
The Senate has referred this bill to the Employment,
Workplace Relations and Education Legislation Committee for report by 10 October 2005. The bill amends the
Higher Education Support Act 2003 to
require that universities and other institutions covered by the act must
provide their employees with the choice of negotiating an Australian Workplace
Agreement (AWA) as an alternative to the current certified agreement. The
committee has considered the merits of this policy and Government senators
express their strong support for the bill in this majority report.
1.2
At its core, this bill aims to promote choice and
flexibility in employment, through reform of the current workplace agreement
arrangements in the sector. Reliance on certified agreements alone is
inappropriate in institutions relying on the varied talents and diverse responsibilities
of academics and administrators. So often, the success of universities depends
on individual effort and achievement, and continued success will depend on
appropriate recognition of that achievement. Despite the existence of
remuneration variations outside the enterprise bargain agreements, there exists
a culture of uniformity in working conditions and remuneration under Enterprise
Bargaining Agreements (EBAs). There also remains the reality that EBAs inhibit
management in relation to poor performance. The use of AWAs facilitates choice for
employees, who are provided with added incentives geared to productivity, and
with the opportunity to better balance their work with their personal lives.
The purpose of the bill and its provisions
1.3
The Government's intentions in regard to workplace
relations reform in the higher education sector were first outlined in the Crossroads paper issued by the minister
in 2002. In particular, the ministerial paper notes criticism that rigidities
in university staffing structures lead to the continuation of a supply-side
approach to course offerings, rather than an approach which is responsive to
student demand. The paper also notes that:
Traditional academic cultures and industrial structures can
operate together to restrict the ability of universities to make the most of
new opportunities. A culture of pattern-type union bargaining restricts
management discretion and induces uniformity of conditions. Pattern-type
bargaining is counterproductive when it results in pay increases that
universities cannot afford without doing damage to their viability. When
locally agreed enterprise bargaining outcomes can be over-ruled by the union's
national office operating as a gatekeeper, the very basis of enterprise
bargaining is undermined.[1]
1.4
Under current provisions of the act, universities are
required to include a clause in their agreements stating they may offer AWAs. On
29 April 2005 the Minister
for Education, Science and Training, the Hon Brendan Nelson MP, announced a set
of Higher Education Workplace Relations Requirements (often abbreviated to HEWRRS)
which considerably strengthen conditions providing for the availability of
AWAs. The amendments in this bill require that universities must offer AWAs to
all new employees after 29 April 2005
and to all other employees by 31
August 2006. Until 30 June
2006, universities are exempt from offering AWAs to casual
employees engaged for a period of less than one month. The bill provides for
the inclusion of the workplace relations requirements into the Commonwealth
Grant Scheme Guidelines and for the Minister to require that the workplace
relations requirements are being met prior to the approval of funding
increments to universities.
1.5
All university workplace agreements certified or varied
after 29 April 2005 must
include a clause that expressly allows for AWAs to operate to the exclusion of
the certified agreement or prevail over the agreement to the extent of any
inconsistency.[2] In the event that
employees elect to enter into an EBA, the principles contained in the HEWRRS
must be embedded in the new Agreement.
1.6
The HEWRRS also usher in a new era of consultation
between universities and their employees. Workplace agreements must provide for
direct consultation between universities and employees on matters relating to
human resources and workplace relations. Workplace relations consultative
committees and associated processes must include employees, and such involvement
must be substantive. It cannot simply comprise unions purporting to speak on
behalf of all employees. The requirements accord universities and their
employees the respect and primacy they deserve as the parties who are entering
into contractual arrangements. This is why the involvement of third parties
representing employees must occur only at the request of an employee.
1.7
This bill further serves to promote efficiency and
productivity in universities through the exclusion in AWAs of policies and
practices which inhibit the capacity of the university and its employees to adapt
work to changing circumstances. The Government is concerned that course
offerings in particular years are in some cases affected by constraints imposed
by EBAs because staff cannot be allocated in a flexible way to meet changing
demands. EBAs may also inhibit the offering of new courses and the maintaining
of courses in declining demand. This means that staffing allocations become
supply driven rather than demand driven. The HEWWRS require the inclusion of
policies and practices designed to reward highly-performing staff, such as a
transparent performance management scheme and efficient processes for managing
poorly performing staff.
1.8
The Government believes the requirement that
universities offer their staff an AWA will enable individuals the opportunity
to bargain for greater flexibility in their employment conditions, potentially
including the provision of bonuses and other rewards for high performance. The
use of AWAs also assists employers to attract and retain the best employees. In
this way, the new workplace relations requirements seek to engender a workplace
relations system which will bring about the best situation for universities,
employees and, most importantly, the students of the institution.
1.9
AWAs accommodate the provision of superior wages and
conditions for staff compared to federal awards and collective agreements.
Studies undertaken for the Office of the Employment Advocate found that workers
on AWAs earn 13 per cent more than workers on collective agreements and 100 per
cent more than workers on awards.[3] It is
also important to note that AWAs are subject to the same safeguards as
collective agreements, including the current no-disadvantage test, and that it
is and will remain illegal to coerce employees into accepting an AWA.
1.10
Even the critics of AWAs concede that they provide
appropriate (that is, increased) remuneration for higher skilled and qualified
employees of that category likely to be employed by universities.
Vice-chancellors have repeatedly assured the committee of their concern that
university employees be well rewarded, and that is what the market currently
demands. Objections to AWAs on the grounds that they represent a salary reduction
strategy in universities have no substance.
1.11
Nor will the workplace relations requirements affect
academic freedom. Universities will continue to make their own decisions about
the appointment of staff and the determination of academic courses.
1.12
Finally, in response to arguments that the bill
represents an exercise in 'micro-management' of the higher education sector,
and undue interference in university autonomy, the committee majority argues
that the role of Government is to ensure that there is a legislative basis for
fair dealing in employment matters, and that public utilities, funded by the
taxpayer, should not be constrained in their employment negotiations. There is
strong reason to believe that this is currently the case. It is not widely or
publicly commented on by vice-chancellors. The Australian Vice-Chancellors'
Committee (AVCC) is almost certainly divided on many issues, including matters
to do with academic salaries, as would be expected of any organisation
representing such a diversity of institutions. With this legislation, the
Government is clearing a path for universities to evolve their own changes to
the way they manage performance and reward their valued and productive
employees.
The evidence from universities and unions
1.13
In evidence received through submissions and at a
public hearing held in Melbourne,
the committee has heard that universities have found the timetable set by the
Minister for the offering of AWAs or the negotiation of new EBAs unreasonable.
The AVCC has requested that provision for AWAs for casual employees be struck
out of the legislation.[4] The AVCC has
also criticised the Government for linking funding to the successful and speedy
negotiation of an EBA consistent with the workplace relations requirements. The
Government responded to these criticisms, a number of which had been made prior
to the committee commencing its inquiry, in two ways. First, the time available
for universities to comply with the requirements in 2005 has been extended from
30 September to 30 November. Second, the requirement of offering AWAs to all
casual staff has been relaxed so it only applies to casuals who are employed
for a period of more than one month.[5]
1.14
Universities with current EBAs, specifically those
registered with the Australian Industrial Relations Commission by 29 April 2005 and with an expiry date
after 1 October 2005, have
been given until 31 August 2006
to comply with the new arrangements. Contrary to the claims of the AVCC, this
further signals the Government's fair and reasonable approach to the
implementation of its policies.
1.15
The AVCC has recognised that delays in reaching EBAs by
the due date have been frustrated by the National Tertiary Education Union
(NTEU):
...the requirement to deliver a conforming EBA actually gives
substantial bargaining power to the unions and acknowledgment that universities
will lose substantial funding—in Monash’s case, $8 million—if this is not
signed. It means that we have a gun at our head in negotiation. Unions do not
have the same feeling that they need to have this because the old EBA is still
in operation until we sign a new one.[6]
1.16
Professor Larkin's comments on NTEU tactics accord with
those of the executive director of the Higher Education Industrial Association,
who has written that the union is putting negotiations at several universities
on the 'back burner' until it can reach more union-friendly agreements at a
handful of institutions and use these to advance its pattern bargaining
strategy. This delay is planned so as to make it too late for universities to
do other than comply with NTEU demands unless they are prepared to forgo much
needed supplementary funding.[7]
1.17
While these matters are not directly relevant to the
question of AWAs, they do highlight the frustrations of an industrial relations
regime which is focused on uniform national agreements rather than individual
workplaces. It is also reported that the NTEU is frustrating negotiations in
some universities for streamlining procedures to deal with the management of
under-performance.[8] This is despite the
assurances made by vice-chancellors, including by Professor
Larkins at the committee's Melbourne
hearing, that a process to ensure the application of natural justice must be
protected in all circumstances.
1.18
Much of the criticism levelled at the Government's
proposals by the NTEU goes to its need to preserve a power base through
retention of its role as employee representative in the agreement negotiation
process. The NTEU is also committed to salary parity as near as possible,
across all universities, although it accepts the realities of above award
salaries and individual contracts. However, it is national in its focus at a
time when the emphasis must be on the individual workplace, and when the sector
is likely to become far more diversified. The committee majority believes that
the introduction of AWAs will be a catalyst for the creation of correspondingly
diverse employment arrangements in the sector, and that even where EBAs
continue, their negotiation will see less involvement from nationally-based
unions.
Conclusion
1.19
The committee majority believes these reforms are
necessary for the long-term sustainability and quality of Australian higher
education. The need for workplace reform in the higher education sector, which
has been characterised by inflexible industrial and practical restrictions, has
been well established. Universities must be able to attract and retain high
performing staff, recognise and reward performance and innovation, and develop
flexible working arrangements that allow institutions and employees to quickly
respond to change. The workplace
relations requirements reflect the Government’s commitment to encouraging a
more productive and internationally competitive higher education sector, for
the good of universities, their staff, and their students.
Recommendation
The committee majority
commends this bill to the Senate and urges its passage without amendment.
Senator Judith
Troeth
Chair
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