Higher Education Workplace Relations Requirements (HEWRRs)

General Questions

• What areas do the HEWRRs cover?
  
  
• How have the HEWRRs been implemented? Where can the details of the content of the HEWRRs be found?
  
  
• What are the eligibility requirements to access increased CGS funding?
  
  
• How much funding is linked to compliance with the HEWRRs?
  
  
• Will decisions about whether institutional agreements, policies and practices meet the HEWRRs be made by the Minister or under delegation by DEST or by DEWR?
  
  
• Where can prospective parties to agreements obtain assistance in drafting HEWRR compliant clauses?
  
  
• Is the Minister bound to follow the advice of DEST in making a decision on the compliance of HEPs with the HEWRRs?
  
  
• What general timeline or specific deadlines will DEST be administering the HEWRRs compliance assessment process against in 2006? When is the 2007 additional CGS funding announcement anticipated?

Current Bargaining Round

• How do the HEWRRs impact on a HEP's existing agreement(s)?
  
  
• Is the Government forcing HEPs to establish new workplace agreements by making them comply with the HEWRRs?
  
  
• Will CGS funding be available to HEPs who have a combination of employment instruments such as awards and workplace agreements?
  
  
• Can HEPs seek to terminate a pre-Work Choices agreement and, if the application is granted, fall back on the underlying award conditions and still be HEWRRs compliant?
  
  
• What do private providers need to do where all staff are employed on individual contracts?
  
  
• Do the HEWRRs apply to employees working in all facilities situated on HEP campuses?
  
  
• When should all workplace policies and practices meet the HEWRRs?
  
  
• If a workplace agreement has been assessed by the Minister as compliant with the HEWRRs but the AIRC or a HEP subsequently interpreted a clause in the agreement in a manner which was non compliant with the HEWRRs, what would happen?
  
  
• What is “prohibited content” in the context of a Work Choices agreement?

HEWRR 1 - Choice in Agreement Making

• What is the situation in respect of AWAs where the HEP’s certified agreements (if any) were made (or varied) and certified AFTER 27 March 2006?
  
  
• When do AWAs have to be offered to new staff?
  
  
• Will there be any target or quota on the number of AWAs that need to be signed?
  
  
• Can you confirm that the HEWRRs require that new employees be offered a choice of an individual or a collective workplace agreement at the point of employment, ie that positions may not be offered on a “no AWA, no job” basis?
  
  
• How is the offer of employment on a “no AWA no job” basis consistent with the HEWRRs?
  
  
• Can you confirm that the requirement under the HEWRRs for genuine choice in agreement making is met by the mere offering of AWAs (as per the Department’s answer to Senate Estimates)? 
  
  Does genuine choice imply any difference in content between the AWA and a collective agreement, or are such matters at the employer’s discretion?
• Do the HEWRRs apply to AWAs?
  
  
• By what mechanism will AWAs be assessed as to their HEWRR compliance?
  
  
• Will AWAs be assessed for HEWRR compliance on the same basis as other workplace agreements?
  
  
• Are private providers required to offer AWAs to employees?
  
  
• Would the inclusion of the following words in a clause regarding AWAs in a certified agreement offend the HEWRRs?
  
  
  • “Consistent with the objects of the WR Act, a member of the staff of the HEP must genuinely agree to enter into, vary or terminate an AWA, and the HEP shall not apply duress to, or coerce a member of staff in connection with an AWA or ancillary document.  Neither will the HEP discriminate against any member of its staff on the grounds of that person’s choice in respect of making, varying or terminating an AWA.  In order to promote informed decision making, where the HEP offers an AWA to a member of staff, the HEP will provide that staff member with a copy of its Certified Agreement at the time the AWA is offered”.
    
    
• Would this clause be consistent with the HEWRRs if it was used or implemented to restrict or disable the terms of an AWA or as a basis for requiring all AWAs to include provisions that are the same as or more beneficial to employees than each clause in the certified agreement?
  
  
• Can HEPs make engagement conditional on accepting an AWA? Or would this breach the genuine choice requirement of the HEWRRs?
  
  
• In the case where a HEP makes a new HEWRRs compliant workplace agreement with some of its staff (for instance general staff or some other sub-set of staff) and they make no other workplace agreement for the other staff, have they met the HEWRRs requirements? Does the full spread of staff of the old agreement have to be covered?
  
  
• Would an employee currently on a pre-reform AWA (that itself does not say that it operates to the complete exclusion of all other awards and agreements) have to be offered a new, HEWRR compliant AWA?
  
  
• Can you confirm previous advice that an interim delay in the offering of AWAs would not be in breach of the HEWRRs, as long as AWA offers were made so as to give staff reasonable time to respond to and negotiate their offer before the relevant deadline (ie 31 August)?
  
  
• Would the making of a union collective agreement contravene the HEWRRs?
  
  
• If an employer sought to negotiate a union collective agreement, would there need to be a request from affected employees for the union to sit at the bargaining table, or could the union be at the table as a right?

HEWRR 2 – Direct Relationships With Employees

• What constitutes 'direct consultation'?
  
  
• Does the requirement for direct consultation require consultation with employees through consultative committees (or other like bodies)?
  
  
• Is it necessary for HEPs to have consultative committees (or other like bodies)?
  
  
• If a HEP chooses to use consultative committees as a consultation tool, what will be required as a minimum for these consultative committees to comply with HEWRRs?
  
  
• Is it necessary for consultative committees to be elected?
  
  
• Is staff union representation on committees inconsistent with the HEWRRs?
  
  
• How should the requirement for direct relationships with employees be satisfied in the context of making and negotiating workplace agreements? In particular, would management-initiated, regular and genuinely open consultative meetings with all staff, including at Faculty/School level, supplemented by the opportunity of staff to comment directly on proposals and drafts, satisfy this test?
  
  
• Where, for the purposes of the “direct relationships with employees” test, it is proposed to have employee representatives sit on consultative committees etc, are such representatives to be selected by management or chosen by employees?
  
  
• Do the HEWRRs require all consultative committees to include a staff union representative? 
  
  
• Would a Staff Agreement and Implementation Committee (SAILC) offend the HEWRRS?
  
  
• Can you confirm previous advice that the requirement for direct relationships with employees can be fulfilled by including employee representatives as well as staff union representatives on relevant consultative, dispute and other committees established under the workplace agreement?

HEWRR 3 – Workplace Flexibility

• Under HEWRR 3 do AWAs have to displace all agreements (including all certified agreements and awards)? Or do they have to displace only "previous agreements and awards" as strictly read from the HEWRRs?
  
  
• What does “simple, flexible and principles based” mean with respect to workplace agreements?
  
  
• Are provisions contained in separate guidelines and policies which are outside workplace agreements still required to comply with the HEWRRs?
  
  
• Does “workplace flexibility” as referred to in HEWRR 3 cover arrangements in relation to workplace change?
  
  
• What aspects of a HEP’s workplace agreements, policies and practices would limit or restrict the HEP’s ability to make decisions and implement change in respect of course offerings and associated staffing requirements?
  
  
• Would the following or similar words in a workplace agreement dispute resolution procedure be contrary to the HEWRRs because they “inhibit the capacity of the HEP … to respond to changing circumstances”?
  
  
  • “Management will not change work, staffing or the organisation of work if such is the subject of the dispute, nor take any other action liable to exacerbate the dispute.”
    
    
• How would the clause above need to be applied in practice to comply with the HEWRRs?
  
  
• If the answer is that such words would offend the HEWRRs, would this be remedied by specifying a limited timeframe in which all consultation must be completed, by including words such as:
  
  
  • “All consultative processes under this clause must be completed within a month”?
    
    
• Would the following or similar words in a workplace agreement dispute resolution procedure offend the HEWRR requirement that workplace agreements etc. not “inhibit the capacity of the HEP … to respond to changing circumstances”?
  
  
  • “While these dispute resolution procedures are being followed, work will continue in the normal manner”
    
    
  • “While these dispute resolution procedures are being followed, no industrial action will be taken by management or the union”
    
    
• How would the clauses above need to be applied in practice to comply with the HEWRRs?
  
  
• Could you please confirm that the “60% rule” that provides that “A part-time [casual] academic staff member who is engaged … for 60% of the time of the teaching contact hours … of a full-time staff member … shall be regarded as a fractional [non-casual] employee” would be considered a “limitation on the forms and mix of employment arrangements”, because if a HEP wished to employ a particular individual to teach for, say, 12 hours per week, the "60% Rule" would prohibit their employment as a casual and they could only be employed in some other capacity?
  
  
• Would a fixed-term contract which is “not terminable, by the employer, other than during a probationary period or for cause based upon serious or wilful misconduct” be consistent with the HEWRRs?
  
  
• Would the inclusion of generic work level or position classification descriptors related to a salary scale in a workplace agreement offend the HEWRRs?
  
  
• Workplace agreements often include limits on circumstances under which persons can be engaged for a fixed term. Would a clause which included a conversion process from fixed term to continuing employment comply with the HEWRRs?
  
  
• Workplace agreements applying in the higher education sector often provide that casual staff may apply to be converted to continuing or fixed-term positions if they have met certain criteria.  Does this conversion process constitute a limit on the form and mix of employment relationships and therefore offend the HEWRRs?
  
  
• What is the position of the HEWRRs in relation to  continuing to incorporate the categories of fixed-term employment contained in the HECE Award and simply supplementing this with another ‘catch-all’ category which may include ‘conversion rights or processes’.
  
  
• Would the example below (in relation to Misconduct Investigation Procedures) be considered to contain “reasonable timeframes”?
  
  
  • Employee must respond to written allegations of misconduct within 10 working days;
    
    
  • If the CEO then decides there has been no misconduct, they shall “immediately advise the employee in writing”;
    
    
  • If the CEO decides to refer the matter to a Misconduct Investigation Committee, or Investigator, they must do so “within 10 working days where practicable”;
    
    
  • A committee must conduct proceedings “as expeditiously as possible consistent with the need for fairness”; and make its report available to the CEO and the employee “as soon as reasonably possible”.
    
    
• Would the inclusion of a “Misconduct Investigation Committee” or similar body comply with the HEWRRs?
  
  
• What would a HEWRR compliant disciplinary clause look like?
  
  
• Would the following provision, if included in an agreement or policy, offend the HEWRRs, and if so, on what basis?
  
  
  • “Disciplinary action” means action by the institution to discipline a member of academic staff for unsatisfactory performance, misconduct or serious misconduct and is limited to:
    
    
    (i)   formal censure or counselling;
    (ii)  demotion by one or more classification levels or increments;
    (iii) withholding of an increment;
    (iv) suspension with or without pay;
    (v)  termination of employment.
    
    
• Would a provision in a workplace agreement which, in its application, prevented a HEP from making employment or promotion conditional upon the acceptance of an AWA be HEWRR compliant?
  
  
• Would a clause which indicated that academic employees must undertake work in all of the following areas be inconsistent with the HEWRRS:
  
  • teaching
  • research, scholarship, professional activity;
  • administration; and
  • professionally related community service.
    
    
• Does a provision requiring that the HEP "offer a genuine and informed choice between the AWA and this agreement" prevent the HEP offering employment on the basis of an AWA, and thereby infringing HEWRR 3 which requires no limitation on the forms of employment?

HEWRR 4 – Productivity and Performance

• What is meant in rewarding high achieving staff?  Does the academic promotions process meet this requirement?
  
  
• Is a committee which manages poor performance consistent with the HEWRRs?
  
  
• Would prescribing such a committee in an agreement comply with the HEWRRs?
  
  
• Can DEST suggest an example of elements in a performance management system that would make it “best practice”? Are HEPs required to adopt a performance management system like this in order to comply with the HEWRR on productivity and performance?
  
  
• Is it necessary for the example set out above to be included within a workplace agreement to comply with the HEWRRs?
  
  
• Can DEST suggest a "best practice" clause concerning disciplinary action and performance management?
  
  
• Does the requirement that "the HEPs workplace agreements, policies and practices must include a fair and transparent performance management scheme” mean each of the three elements must include the scheme (ie, it must be included in each of an agreement, policy or practice) or the combined effect of the three must include the scheme?

HEWRR 5 – Freedom of Association

• Do the HEWRRs prevent HEPs from allowing union usage of HEP facilities?
  
  
• Is it permissible for HEPs to have internet links to union websites on their websites?

Employee Issues

• Will I be forced to accept an AWA?
• Are unions still able to represent me?
• Will I still have access to a workplace agreement?

Contact Information

• Where can I get further information on the HEWRRs?