The Guardian April 17, 2002


NTEU in case by case struggle to defend job security

by Bob Briton

Unions have come in for quite a deal of criticism in recent times for their 
failure to adapt to the changes taking place in the modern workplace. High 
on the list of complaints is that unions have done little to help workers 
employed on a casual basis in their industry, let alone had much success in 
organising these workers.

Every now and then, however, comes some news of union successes in the 
battle against the scourge of casualisation. Last December, for example, 
the Shop Distributive and Allied Employees Association (SDAEA) scored a 
victory over fast food outlet KFC in the Federal Court.

Encouraged by the Federal Government, KFC believed that short-term casuals 
were not protected by the then current unfair dismal legislation.

KFC was wrong  as was shown in the test case brought by the SDAEA.

In November 2000, the Australian Manufacturing Workers Union was able to 
get a guarantee of permanency for metal workers in Victoria who had been in 
continuous employment in the industry for more than six months.

A seemingly unlikely backdrop for the struggle over issues related to 
casualisation and the scene of a number of significant victories is the 
higher education system.

The National Tertiary Education Union (NTEU) represents over 25,000 
academic and other staff at Universities and TAFE colleges and has had to 
contend with the problems of an industry where 15 per cent of staff 
officially (and up to 25 per cent according to some estimates) are casuals.

The NTEU has been kept very busy monitoring the application of the "60 per 
cent rule" that is now incorporated into most Enterprise Agreements.

The universal application of the rule was dropped from the academic award 
in 1998.

However, most university EBA's stipulate that a casual who works more than 
60 per cent of the teaching load of a full-time academic of similar 
designation must be employed as a "fractional employee".

This means that they should be entitled to the conditions of a full-time 
employee and paid the relevant fraction of the equivalent full-time salary 
and NOT by the hour.

The interpretation of this rule is not always straightforward and goes part 
way to explaining why academic EBA's are such weighty documents.

As NTEU Industrial Officer Kathy Harrington explained to The Guardian, the 
rule usually relates to the number of contact hours with students performed 
by the staff member.

At Adelaide University, for example, the 60 percent limit is exceeded when 
more than eight hours of lecturing or tutoring is carried out or more than 
10 hours of demonstrating per week.

At Flinders University, no more than 120 contact hours can be undertaken in 
any semester (16 weeks).

Enforcement

Of course, having an EBA in a nice folder is one thing, its enforcement is 
another.

Last month the NTEU was obliged to take up the case of an employee who had 
been teaching more than 60 per cent of the full-time workload at the 
University of Newcastle since 1992 and who was still regarded by the 
employer as a casual!

The Industrial Relations Commission took a "two bob each way" position on 
the matter and, while conceding that the NTEU member concerned ought to 
have had the pay and conditions of a part-time employee, the employment 
relationship with the University could remain casual.

Another bone of contention between the NTEU and a number of universities 
has to do with what is called the Higher Education Contract of Employment 
(HECE) Award.

This standard element of most EBA's limits the proportion of staff that can 
be employed on fixed-term contracts so that permanent positions can be 
protected.

In January the Federal Court found the University of Wollongong guilty on 
two counts of breaching the "HECE Award" provisions.

The University was fined $4000 for employing Dr Grant Rodwell on a fixed-
term contract while he was, in reality, carrying out "core undergraduate 
teaching" on a continuing basis.

The University's defence was that he was employed on a "specific project". 
Justice Branson rejected this argument. The University was also fined $1000 
for failing to correctly advise Dr Rodwell, in his letter of appointment, 
of the reason he was appointed on a fixed-term contract.

As is customary in cases like these, the Court consoled the University by 
refusing to declare that Dr Rodwell was a continuing employee.

The Union subsequently returned to the Industrial Relations Commission on 
January 31 (his last day of work) seeking orders that the University 
convert Dr Rodwell to continuing employment or pay him the severance 
payments he would have been entitled to as a continuing employee.

Another ongoing case involving the "HECE Award" issue is set down to 
continue after the Easter long weekend in the Federal Court in Adelaide.

It is the case of Dr Robert Moles and the NTEU versus the University of 
Adelaide.

Dr Moles and the union are arguing that the University has failed to comply 
with the award by employing an Associate Professor in the Law School on a 
fixed term contract, which would be permissible for a "specific task or 
project". The problem is that Dr Moles is doing work of an ongoing nature.

No doubt the NTEU will have to maintain their vigilance as university 
administrations persist in their attempts to shift the burden of their 
economic difficulties onto employees and students.

However, the current tense environment is not causing the union to be 
defensive.

In fact, the NTEU has just delivered a list of claims on behalf of casual 
employees to the Vice-Chancellors of all Australian universities.

It includes a demand that the casual hourly loading be lifted to 30 per 
cent from its present 15-20 per cent. This would encourage universities to 
consider more permanent modes of employment for their workers.

Other demands include:

* "conversion" mechanism for casual general staff with more than six 
months' service;
* dispute-Settling Procedure to deal with disputes about the long-term use 
of casual staff;
* redundancy payments for long-term casual staff;
* a minimum of four hours' pay each time casual work is performed;
* overtime, shift and other penalty rates to apply to casual general staff;
* academic casual employees to be paid up to 20 hours' pay per annum to 
maintain currency in their teaching discipline;
* improved pay arrangements for casual employees required to undertake 
intermittent or irregular consultation with students by phone or email;
* all casual work to be paid within 14 days of the work being performed.

Casualisation and other job security issues will also be high on the agenda 
at the NTEU's National Conference in October.

It would certainly pay the rest of the trade union movement to follow 
developments and to consider how some of the methods currently being used 
and refined by this education union could be used elsewhere in industry.

Such conditions could play an important role in discouraging employers from 
the unnecessary use of contract and casual labour  a campaign to still be 
fought and won.

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