NATIONAL UNITS

www.nteu.org.au/rights

Director (Industrial & Legal): Wayne Cupido Senior Legal Officer: Kelly Thomas National Industrial Officer: Campbell Smith National Industrial Officer (Research and Projects): Ken McAlpine Industrial Support Officer: Renee Veal The Unit is under the direction of the General Secretary The pandemic has delivered an industrial environment that we have never faced before. Stand downs, quarantine orders, campus closures, working from home, health and safety issues, JobKeeper (or lack thereof), agreement variations and job losses, are some of the issues that Union has had to respond to this year. The National Industrial and Legal Team (NILT) acknowledges and thanks all members, Branch, Division and National office staff who have supported us in responding to the challenges that the pandemic has thrown at us this year. Without this collective response, we would not have been able to perform the work outlined in this report.

Bargaining

Jobs Protection Framework & Enterprise Agreement Variations In response to the impact of the pandemic on University budgets, and the failure of the Federal Government to provide any significant financial aid to the sector, the work of the National Industrial and Legal Team (NILT) has been focused on enforcing our members’ rights and negotiating variations to enterprise agreements that protect jobs. Members of the NILT also attended and assisted Branches and Divisions at member meetings to consider variations. NTEU variations have been negotiated at eight Universities, one non-union variation (ANU) has been approved by the Fair Work Commission (FWC), another (JCU) is pending approval and subject to challenge by the Union. Four non-union variations were voted down by members at Melbourne, Murdoch, Griffith and Curtin University. All union negotiated variations are temporary and contain job protection measures and improvements in rights for members. Job protection measures include stronger limits to forced redundancies, no stand downs without pay, new rights to work for casuals and fixed term staff, and no unnecessary external appointments for the life of the variation. Most importantly, Union endorsed variations will save more than 1500 jobs and increase management accountability. A critical part of the Union negotiated variation framework has been the establishment of the national Expert Assessment Panel (EAP). The EAP is a joint union-management auditing panel. The panel’s role is to forensically examine university accounts and to assess whether there is a genuine need for any proposed cost saving measures. Additionally, the Panel considers whether a University has implemented other cost saving measures including cuts to senior executive salaries and discretionary spending. For the remainder of 2020 and in 2021, the NILT will continue to work with Branches and Divisions to implement variations, and assist every Branch to enforce the industrial rights of our members through what we expect to be a tumultuous time.

Review of Round 7 & prep for Round 8 Over the past year the NILT undertook a much more comprehensive and detailed analysis of bargaining outcomes in higher education than has been done before. Clauses dealing with key issues have been objectively assessed and compared to each other across the sector, and there has been a

stock-take of gains and losses since Round 5. This will inform Branches and relevant staff about strengths and weaknesses going into Round 8. National Office and the National Executive have been analysing the impact of the pandemic, the concerns of key membership groups and the attitude of the employers in developing an approach to Round 8 in 2021, which is likely to be the most complex at least since that following the HowardGovernment’s HEWRRs in 2005. Coping with and assessing the impact of the pandemic has delayed strategy development but major decisions will be made by a Special Council in December 2020.

Bargaining in other sectors Bargaining outside the Higher Education sector has been ‘brisk’ with strong outcomes on pay in TAFE agreements, Research institutes and English Language providers. The challenge (or opportunity) for the Union remains increasing our density and activism in these areas so that we can achieve consistent entitlements for all our members.

Key disputes Over the last twelve months, the most significant disputes have largely fallen across two themes – academic freedom and consultation over major workplace change. The latter is in large part as a result of the impact of COVID-19 and the devastating impacts on job security in the sector.

James Cook University – Peter Ridd – Academic freedom In April 2019, Dr Peter Ridd won his case in the Federal Circuit Court against his former employer James Cook University. The Court found that JCU had breached the intellectual freedom clause of the enterprise agreement when it, among other things, terminated Ridd’s employment. JCU appealed that decision to the Federal Court, and NTEU sought leave to intervene in the appeal. In July 2020, the Federal Court found in JCU’s favour, and did not allow NTEU to intervene. The Full Court found that the Code of Conduct still applied to academics when exercising intellectual freedom, and largely disregarded the historical and fundamental notions of intellectual freedom. Ridd has now appealed to the High Court.

Murdoch University – Gerd Schrõder-Turk Gerd Schrõder-Turk, the academic representative on the Murdoch University Senate brought a case against the University when it attempted to remove him from his position on the Senate because of his appearance on Four Corners where he criticised the University’s approach to the recruitment of international students.

In a highly publicised court case, the University also sought to sue him personally for loss in revenue. The matter settled. Gerd remains on the Senate and a review into governance has been announced.

University of Sydney – Tim Anderson – Academic freedom NTEU has brought legal action on behalf of Tim Anderson against the University of Sydney when it terminated his employment for exercising his intellectual freedom when posting his teaching slides on social media. The University decided his posts were offensive and he breached the Code of Conduct. The trial will proceed in late October 2020.

JMC Academy – Sham contracting JMC is a private provider offering degrees in creative media and performing arts. They engage the majority of staff as ‘independent contractors’ meaning they do not receive minimum award rates or superannuation. NTEU has been actively recruiting members there, and in September launched Federal Court action on behalf of our members to stop these exploitative practices.

Deakin University – Change management When Deakin management announced change plans that included a reduction of around 400 positions, the Branch notified a dispute on the basis that management were not properly consulting on the universitywide change, and instead doing so on a siloed basis which gave staff no real opportunity to change management’s mind.

In a case that provided many wins along the way (interim order significantly delaying the process, orders for the production of documents) the Commission found in our favour, ordering management back to the drawing board for proper consultation.

University of Technology Sydney – Lucy Zhao – Research expectations UTS terminated the employment of Dr Lucy Zhao for failing to publish in an A/A* journal. NTEU represented Dr Zhao in an unfair dismissal application and was successful in gaining her reinstatement. UTS appealed the decision, claiming that the FWC had expressed views which elevated teaching over research, however, the Full Bench found that there was no error in the original decision. Dr Zhao is now back at work at UTS.

Training The NILT has engaged in a variety of training activities. The NILT produced a Fact Sheet relating to COVID-19 issues, has engaged in directed training at institutions with the Jobs Protection Framework in place, as well as delivered approximately 10 different training sessions for Industrial Officers and Branch Presidents on a range of member rights and entitlements. ◆

Images (this page): Social media graphic celebrating the Union win at Murdoch University, Sept 2020; ACT members calling for paid parental leave for all staff (Lachlan Clohesy); #IStandWithGerd social media graphic.