Union and employer association clash on Australian workplace law

‘No less favourable’ provision a ‘major win’ for university staff or a handbrake on their salaries, depending on perspective

February 13, 2024
Referee showing a red card
Source: iStock

University staff and employer representatives have offered starkly contrasting appraisals of the latest change in Australia’s workplace laws, with the former hailing the new arrangements as a “major win for workers” and the latter saying they would produce “less job growth, less job security and ultimately lower pay outcomes”.

The National Tertiary Education Union (NTEU) has “strongly endorsed” measures in the second “Closing Loopholes” bill, which was passed by parliament on 12 February. General secretary Damien Cahill said the legislation would safeguard workers’ “right to disconnect” after hours, while strengthening opportunities for casual staff to convert to permanent jobs.

Dr Cahill said the Fair Work Commission (FWC) would also be obliged to ensure that employees’ conditions could not “go backwards” when it was called on to arbitrate on intractable bargaining disputes.

“These changes will make it harder for vice-chancellors and senior executives to game workplace laws in attempts to drive down pay and conditions,” he said. “Unfortunately, we were seeing some universities stalling negotiations in an attempt to push for arbitration.

“The NTEU exposed this agenda last year and it is good to see that the government has responded with much-needed changes. Now workers will have a guarantee that any final call the workplace umpire makes when arbitrating bargaining disputes will leave no one worse off.”

The Australian Higher Education Industrial Association (AHEIA) said the new rule would impede productivity and stifle salary rises by entrenching antiquated provisions. “The FWC [will be] powerless to value-add through arbitration, as [it is] restricted by the new legislative mandate to make individual terms ‘no less favourable’ than existing provisions,” said AHEIA executive director Craig Laughton.

“All negotiations comprise offers of compromise and trade-offs on both sides. From now on, this will be limited by law in Australia, with one side calling the shots and an umpire without a whistle.”

The changes are the second tranche of the loopholes legislation, which was divided into two on 7 December with the first bill approved by parliament the same day.

A Labor-dominated Senate committee inquiring into the second bill scoffed at suggestions that it would hinder productivity and recommended that the legislation be passed with amendments unrelated to the new arbitration rule.

But a dissenting report from Liberal Party senators highlighted the intractable bargaining provisions as a feature of the “fatally flawed” legislation, noting criticism from the Labor state treasurer of Victoria, Tim Pallas. “The ‘no less favourable test’…removes the incentive for unions to reach an agreement,” he warned in a letter to a federal counterpart.

In additional comments to the February report, the Australian Greens argued that employers had sought to exploit the recently introduced intractable bargaining provisions by “holding out during negotiations” in the hope that the FWC would impose “less favourable conditions” on their staff.

“Workers must be protected from the disadvantage of having their hard-fought conditions wound back,” Greens senator Barbara Pocock said. “This loophole needs to be closed.”

Mr Laughton said the argument was moot, with the intractable bargaining provisions “untested” to date. He said the FWC had rejected the only contested application by an employer to have a dispute forcibly arbitrated. 


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