HR Information Sharing SessionHR Information Sharing Session

August 2007August 2007

Fixed Term ContractFixed Term Contract

WorkChoices, HEWRRsWorkChoices, HEWRRs

And And

The ANUThe ANU

PresenterPresenter

Bradley Beasley LLB, LLM, Grad Cert Legal PracticeBradley Beasley LLB, LLM, Grad Cert Legal PracticeLegal Practitioner of the:Legal Practitioner of the:Supreme Courts ACT, NSW; and High Court of Australia.Supreme Courts ACT, NSW; and High Court of Australia.Senior Employment Strategies Advisor –LegalSenior Employment Strategies Advisor –Legal

Telephone Telephone (02) 6125 0106(02) 6125 0106

Facsimile:Facsimile: (02) 6125 0559(02) 6125 0559

Email:Email: Bradley.Beasley@anu.edu.auBradley.Beasley@anu.edu.au

Address:Address: Human Resources DivisionHuman Resources DivisionBuilding 10B,   ChancelryBuilding 10B,   ChancelryThe Australian National UniversityThe Australian National UniversityACT 0200 AustraliaACT 0200 Australia

OverviewOverview1.1. Fixed Term ContractsFixed Term Contracts

2.2. WorkChoicesWorkChoices

3.3. HEWRRsHEWRRs

4.4. ANU Fixed Term ContractsANU Fixed Term Contracts

Fixed Term Fixed Term ContractsContracts

A fixed term contract is one that expires A fixed term contract is one that expires through the effluxion of time.through the effluxion of time.[1]

However, it is not a fixed term contract if However, it is not a fixed term contract if the employment is or can be terminated the employment is or can be terminated at the initiative of the employer.at the initiative of the employer.[2]

[1] National Tertiary Education Industry Union on behalf of Ms Lynn Fisher v Edith Cowan UniversityNational Tertiary Education Industry Union on behalf of Ms Lynn Fisher v Edith Cowan University (960313) (960313)[2] [2] M Mohazab v Dick Smith Electronics Pty Ltd.M Mohazab v Dick Smith Electronics Pty Ltd. FB of IR Ct (Lee, Moore and Marshall JJ) (NI 2571 of 1995) FB of IR Ct (Lee, Moore and Marshall JJ) (NI 2571 of 1995) 28/11/95.28/11/95.

The LawThe Law

What the court does look towards is, had the employer not taken the action it did What the court does look towards is, had the employer not taken the action it did the employee would have remained in employment.the employee would have remained in employment.[1]

Northrop J in Northrop J in Cooper v Darwin Rugby League Inc. Cooper v Darwin Rugby League Inc. 1994 57 IR 238 at p 241stated: 1994 57 IR 238 at p 241stated: "Of more importance generally is the fact that, even if the contract of "Of more importance generally is the fact that, even if the contract of employment was such a contract, (ie a contract for a specified period of employment was such a contract, (ie a contract for a specified period of time) the respondent, possibly, was not entitled to the immunity time) the respondent, possibly, was not entitled to the immunity conferred by s 170CC of the Act. One thing is clear. The employment of the conferred by s 170CC of the Act. One thing is clear. The employment of the applicant was terminated by the unilateral act of the respondent. The applicant was terminated by the unilateral act of the respondent. The employment was not terminated by effluxion of the period of time employment was not terminated by effluxion of the period of time specified in the contract of employment. In these circumstances, it is only specified in the contract of employment. In these circumstances, it is only fair that the issue of whether the termination was lawful or not depends fair that the issue of whether the termination was lawful or not depends upon all the facts leading up to the unilateral termination of employment upon all the facts leading up to the unilateral termination of employment by the respondent…" by the respondent…"

In In Nikulin v The University of Newcastle Nikulin v The University of Newcastle Print Q5610, Raffaelli C stated:Print Q5610, Raffaelli C stated:"At the "At the outset, I consider that it would be a curious effect of the Act if the outset, I consider that it would be a curious effect of the Act if the entering into a fixed term contract would inhibit the Commission from entering into a fixed term contract would inhibit the Commission from intervening notwithstanding a deliberate and clear breach of such fixed intervening notwithstanding a deliberate and clear breach of such fixed term contract by the effecting of a termination prior to the agreed expiry term contract by the effecting of a termination prior to the agreed expiry date. Surely the exclusion is only in respect of a termination that occurs date. Surely the exclusion is only in respect of a termination that occurs at the end of the fixed term.”at the end of the fixed term.”

[1] R Grout v Gunnedah Shire Council.R Grout v Gunnedah Shire Council. IR Ct (Moore J) (No NI 397 of 1994) 30/9/94. IR Ct (Moore J) (No NI 397 of 1994) 30/9/94.

WorkChoicesWorkChoices Under WorkChoices, with the exceptions of an unlawful termination of a Under WorkChoices, with the exceptions of an unlawful termination of a

contract of employment, there are a number of classes of staff who are contract of employment, there are a number of classes of staff who are excluded from running an unfair dismissal case, however for our excluded from running an unfair dismissal case, however for our purposes, this applies if:purposes, this applies if:

They are on probation or qualifying period; They are on probation or qualifying period;

They are employed on a fixed term contract of employment or They are employed on a fixed term contract of employment or project; project;

They are a casual employee;They are a casual employee;

Genuine operational needsGenuine operational needs[1] (unless it is a sham);[2] (unless it is a sham);[2]

Their remuneration is in excess of $101,300.00;[3] and the staff Their remuneration is in excess of $101,300.00;[3] and the staff member is not covered by an award, enterprise agreement or member is not covered by an award, enterprise agreement or AWA[4]; and AWA[4]; and

Others…Others…

[1] S643(8) [1] S643(8) Workplace Relations Act 1996 Workplace Relations Act 1996 [2] [2] Brent Acworth v Boeing Australia LimitedBrent Acworth v Boeing Australia Limited - [2007] AIRC 413 (25 May 2007) - [2007] AIRC 413 (25 May 2007) PR977142PR977142[3] S638 (7) (b) [3] S638 (7) (b) Workplace Relations Act 1996 Workplace Relations Act 1996 and Reg 12 of the and Reg 12 of the Workplace relations Regulations 2006Workplace relations Regulations 2006 [4] S638 (1) (i), s642 (6) [4] S638 (1) (i), s642 (6) Workplace Relations Act 1996 Workplace Relations Act 1996 R12 of the R12 of the Workplace Relations Regulations 2006Workplace Relations Regulations 2006

HEWRRsHEWRRs

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

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

On 10 November 2005 the Australian Parliament passed the Higher On 10 November 2005 the Australian Parliament passed the Higher Education Legislation Amendment Bill (2005), giving effect to the Education Legislation Amendment Bill (2005), giving effect to the HEWRRs.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 future workplace relations reforms and has a significant impact on future Higher Education funding eligibility.Higher Education funding eligibility.

For the Australian National University to obtain access to future For the Australian National University to obtain access to future funding the Varied Australian National University Enterprise Agreement funding the Varied Australian National University Enterprise Agreement 2005-2008 (the VANUEA) was introduced to be HEWRR compliant, this 2005-2008 (the VANUEA) was introduced to be HEWRR compliant, this occurred through consultation and on advice obtained from DEST and occurred through consultation and on advice obtained from DEST and DEWRDEWR..

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”.

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.

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

Severance Severance Transitional provisionsTransitional provisions

Review the Review the procedure for “Severance Payments” fprocedure for “Severance Payments” for or details concerning the transitional arrangements details concerning the transitional arrangements between the:between the:

Australian National University Enterprise Agreement Australian National University Enterprise Agreement 2005-2008; and2005-2008; and

Varied Australian National University Enterprise Varied Australian National University Enterprise Agreement 2005-2008.Agreement 2005-2008.

The procedure for Severance Payments may be found The procedure for Severance Payments may be found at the following website:at the following website:

http://info.anu.edu.au/Policies/_DHR/Procedures/Severance_Payments.asphttp://info.anu.edu.au/Policies/_DHR/Procedures/Severance_Payments.asp

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.