Option to bypass unions in employment agreements could close

Poorly understood clause in new Australian act may oblige universities to reach terms with representatives, just as they develop a taste for dealing directly with staff

December 21, 2022
Ground staff cover pitch in Sydney, Australia to illustrate Option to bypass unions in workplace agreements  could close
Source: Getty

Australian universities may be forced to abandon a trend of negotiating workplace agreements directly with their staff, after new industrial relations legislation comes into force.

As initially drafted, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill – which passed parliament on 1 December – requires employers to obtain written approval from the unions they have been negotiating with before inviting staff to vote on enterprise agreements.

This requirement only applies to multi-employer agreements, which are unlikely to exist in higher education for at least another year. And on a Senate committee’s recommendation, the bill was amended to oblige the Fair Work Commission (FWC) to order a vote if a union had unreasonably withheld its approval.

However, some commentators have interpreted the so-called union veto power as applying to all enterprise agreements, including the single-employer agreements that predominate in higher education.

Craig Laughton, executive director of the Australian Higher Education Industrial Association, said that may be the case by the time the approval requirement comes into force by next June. He said its application only to multi-employer agreements was an “anomaly” that he expected to be resolved either through regulations drafted by the FWC or further amendments to the act next year.

Mr Laughton said the scale of the government’s industrial relations overhaul and the speed of its introduction had left many people confused about the details. “This is a massive change, and to not have amendments through the process would be very rare,” he said.

Since October, an unprecedented four universities have asked their employees to vote on proposed enterprise agreements that were opposed by the National Tertiary Education Union (NTEU).

While such approaches usually fail, two of these proposals – at Southern Cross and Charles Darwin universities – were approved by staff in November.

At Griffith University, which negotiates separate enterprise agreements for its professional and academic employees, staff voted in favour of the former and rejected the latter. At the University of Newcastle, which also has dual agreements, staff voted against both.

Four other institutions – Western Sydney University (WSU), the University of Tasmania, the Australian Catholic University (ACU) and Queensland University of Technology – have reached in-principle agreements with employee representatives before putting enterprise agreement proposals to staff votes.

The union regards the WSU agreements, which were approved by the FWC on 9 and 12 December, as exemplars. They feature four consecutive pay rises of around 3 per cent each, an additional “salary uplift” for professional staff, a commitment to make the equivalent of 150 new full-time positions available to casual academics, new forms of leave and restrictions on future organisational changes or workload increases.

Stephen Weller, ACU’s deputy vice-chancellor, said he expected more universities to reach agreements with their unions now that the WSU proposals had been cleared by the commission. At the same time, bypassing the union was no longer an “outlier” tactic.

But Dr Weller said he expected the “window to go direct to staff” to close in mid-2023. Meanwhile, some universities, “emboldened” by the institutions that had already trodden this path, may be tempted to follow suit if negotiations with unions bogged down.

NTEU Queensland secretary Michael McNally said his union had almost always been able to reach agreement with universities, and staff should be suspicious of any direct proposal from management.

“If it’s something that they’ve lived with for the last four years, and they want to change it so desperately they go around the union to do so, that’s probably not a good deal,” he said.


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