Higher Education Workplace Relations Requirements (HEWRRs)

Transitional Arrangements for Existing Workplace Agreements Following Proclamation of Work Choices

These questions and answers are to inform higher education providers of the transitional arrangements under the Workplace Relations Amendments (Work Choices) Act 2005 (Work Choices) for agreements made before 27 March 2006.

Certified agreements

Q. Will certified agreements in operation before the commencement of Work Choices continue to operate?

A. Yes. Certified agreements in operation before the commencement of Work Choices will continue to operate until they are replaced by a workplace agreement made after Work Choices commences.

Q. Can pre-reform certified agreements be varied or extended after the commencement of Work Choices?

A. Only in limited circumstances.  Pre-reform certified agreements can only be varied to remove ambiguity or uncertainty, or to ensure its coverage does not exclude employees because of their union, or non-union, membership.  Pre-reform certified agreements cannot be extended after the commencement of Work Choices.

Q. Do pre-reform certified agreements need to comply with the Australian Fair Pay and Conditions Standard?

A. No.  These agreements will not need to comply with the Australian Fair Pay and Conditions Standard for the period of their operation because they were assessed against the no-disadvantage test prior to certification.

Q. Can certified agreements made prior to the commencement of Work Choices be terminated?

A. Certified agreements made prior to the commencement of Work Choices may be terminated using the termination provisions which applied before Work Choices. A pre-reform certified agreement that is terminated will cease to have effect. In these circumstances, an employee’s entitlements will come from:

• any applicable collective agreement or AWA made after Work Choices commences, or
• in the absence of a workplace agreement, an applicable award.

Q. Can a collective agreement made under Work Choices arrangements replace a pre-reform certified agreement before the Nominal Expiry Date (NED) of the pre-reform certified agreement?

A. Yes. Work Choices provides that a pre-reform certified agreement ceases to be in operation in relation to an employee if a collective agreement comes into operation.

Therefore a collective agreement made under Work Choices can replace a pre-reform certified agreement before the NED of the pre-reform agreement. 

Agreements currently being finalised

Q. Should all agreements currently being finalised comply with Work Choices?

A. Higher education providers in the process of finalising collective agreements should note that if the application for certification of their collective agreement had not been made before 27 March 2006, the collective agreement must comply with the requirements of the WR Act as provided after the commencement of Work Choices. 

This applies to any collective agreement not lodged with the AIRC, including those:

• agreed in-principle at the negotiating table but not yet put to staff for consideration;
• in the consideration phase;
• in the voting period; and/or
• voted up but not lodged with the AIRC for certification.

AWAs

Q. Will AWAs made before the commencement of Work Choices continue to operate even after they pass their nominal expiry date unless terminated or replaced by a new AWA?

A. Yes.

Q. Can pre-reform AWAs be varied after the commencement of Work Choices?

A. No. Pre-reform AWAs cannot be varied after the commencement of Work Choices.

Q. Do pre-reform AWAs need to comply with the Australian Fair Pay and Conditions Standard?

No.  It is not necessary for pre-reform AWAs to comply with the Australian Fair Pay and Conditions Standard because these AWAs were assessed against the no disadvantage test prior to approval. 

Q. How can a pre-reform AWA be terminated?

A. A pre-reform AWA may be terminated using the termination provisions which applied before Work Choices commenced. If a pre-reform AWA is terminated but not replaced by a new AWA, an employee’s entitlements will come from:

• any applicable certified agreement or collective agreement; or
• in the absence of such agreement, an applicable award. 

AWAs currently being finalised

Any AWA which had not been filed for approval by the OEA before 27 March 2006 must comply with the requirements of the WR Act as provided after the commencement of Work Choices.. They must be remade under the WorkChoices arrangements, and then lodged, according to the new law.

This applies to any AWA not filed with the OEA, including those:

• agreed in-principle between the employer and employee;
• in the consideration phase; and/or
• signed but not filed with the OEA for approval.

Lodging Workplace Agreements

Q. How has the workplace agreement lodgement process changed under WorkChoices?

A. Details on the lodgement process can be obtained from the Office of the Employment Advocate (OEA) either by visiting the website www.oea.gov.au or phoning 1300 366 632.

Would an employee currently on an 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?

HEWRR 3 requires that all workplace agreements (which would include existing and future AWAs) should expressly displace previous workplace agreements and relevant awards. Group 1 universities should have in place AWAs which are consistent with the HEWRRs by 30 November 2005. Group 2 universities should have these in place by 31 August 2006.

However, the Workplace Relations Act 1996 s170VPA (2) and (4) require that the employee must genuinely consent to either the variation or termination of the AWA.

Accordingly, we suggest that the practices of universities should include the offer of AWAs consistent with the HEWRRs to employees on existing AWAs which are not consistent with the HEWRRs. However, this offer must be made in accordance with the WR Act, that is, the employee must consent to the variation or termination of their current AWA. Furthermore, Vice-Chancellors would be required to sign off at the compliance dates that this practice has occurred (making a genuine offer).

Upon the nominal expiry date of an AWA which is inconsistent with the HEWRRs, universities must offer an AWA which is consistent with the HEWRRs.

If employees engaged after 29 April 2005 for longer than one month leave the HEP before 30 November 2005 prior to being offered an AWA, will the HEP be non-compliant with the HEWRRs?

The Questions and Answers that follow are provided in order to help with understanding of the Higher Education Workplace Relations Requirements.

The Questions and Answers were last updated on 10 November 2005.

GENERAL QUESTIONS

• What areas do the Higher Education Workplace Relations Requirements (HEWRRs) cover?
• What improvements have been made to the HEWRRs since their initial announcement on 29 April?
• What are the eligibility requirements to access increased CGS funding?
• What constitutes an existing agreement in the context of the HEWRRs?
• How much funding is linked to compliance with the HEWRRs?
• How long will it take to assess draft HEWRR-compliant Agreements and advise the parties of the outcome? 
• 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?
• Have any Agreements already been accepted by DEST or DEWR as complying with the HEWRRs? If so, which ones?
• 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 Higher Education Providers with the HEWRRs?

CURRENT BARGAINING ROUND

• How do the HEWRRs impact on a university's existing agreement(s)?
• Is the Government forcing universities to bargain another certified agreement?
• Will CGS funding be available to universities who have a combination of employment instruments such as award(s), certified agreement(s) and AWAs?
• What do private providers need to do where all staff are employed on individual contracts?
• How will the HEWRRs be implemented?
• Do the HEWRRs apply to employees working in all facilities situated on university campuses?
• When should all workplace policies and practices meet the HEWRRs?
• If a certified 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?

HEWRR 1 - CHOICE IN AGREEMENT MAKING

• When do AWAs have to be offered to new staff?
• Will there be any target or quota on the number of AWA’s that need to be signed?
• Is there some form of Higher Education AWA template?
• How can universities be sure their AWAs will pass the no disadvantage test?
• How does the no disadvantage test work in practice?
• Can you confirm that the HEWRRs require that new employees be offered a choice between an AWA and the certified 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 the certified 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 certified 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 Workplace Relations Act 1996, 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?
• Do AWAs have to displace all agreements (including certified agreements) and awards? Or do they have to displace only "previous agreements and awards" as strictly read from the HEWRRs?
• 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 certified agreement with some of its staff (for instance general staff or some other sub set of staff) and they make no other certified 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?
• If employees engaged after 29 April 2005 for longer than one month leave the HEP before 30 November 2005 prior to being offered an AWA, will the HEP be non-compliant with the HEWRRs?
• Given s. 170VF of the Workplace Relations Act, would the failure of a HEP to offer an AWA to persons employed after 29 April 2005 but who are no longer employeees be inconsistent with the HEWRRs?
• Would an employee currently on an 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?

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 Higher Education Providers to have consultative committees (or other like bodies)?
• If a Higher Education Provider 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 union membership on committees inconsistent with the HEWRRs?
• How should the requirement for direct relationships with employees be satisfied in the context of making and negotiating certified 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?
• Can you confirm that the HEWRRs do not prevent an interim understanding or agreement between NTEU and a University, foreshadowing the negotiation and certification of a HEWRR-compliant s 170LJ Agreement, in accordance with the relevant Government deadline?
• Can a Memorandum of Joint Intent between a HEP and the NTEU result in a breach the HEWRRs?
• Do the HEWRRs require all consultative committees to include a union representative? 
• Would a Staff Agreement and Implementation Committee (SAILC) offend the HEWRRS?

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 principle based” mean with respect to workplace agreements?
• Are provisions contained in separate guidelines and policies which are outside the 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 offering and associated staffing requirements?
• Would the following or similar words in a certified 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 to the previous question 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 with a month”?
• Would the following or similar words in a certified agreement dispute resolution 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 clause 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 university 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 certified agreement or an AWA offend the HEWRRs?
• Certified 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?
• Certified 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 certified agreement which in application prevented a higher education provider 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 university "offer a genuine and informed choice between the AWA and this Agreement" prevent the university 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 universities 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 certified 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 or the combined effect of the three must include the scheme?

HEWRR 5 – FREEDOM OF ASSOCIATION

• Do the HEWRRs prevent universities from allowing unions use of university facilities?
• Is it permissible for universities 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 certified agreement?

OTHER

• 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 (30 November 2005 or 31 August 2006)?
• Can you confirm previous advice that the negotiation or making of an Agreement under Section 170LJ of the Workplace Relations Act (agreement with an organisation of employees) would not contravene the HEWRRs?
• If an employer sought to negotiate a s 170LJ Agreement with NTEU, 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 of right?
• Can you confirm previous advice that the requirement for direct relationships with employees can be fulfilled by including staff representatives as well as union representatives on relevant consultative, dispute and other committees established under the certified agreement?

GENERAL QUESTIONS

What areas do the Higher Education Workplace Relations Requirements (HEWRRs) cover?

The HEWRRs are designed to provide staff with greater choice and institutions with more flexibility.  They will assist to ensure that universities are able to attract and retain the best staff and emphasise:

• choice in agreement making;
• direct relationship with employees;
• workplace flexibility;
• productivity and performance; and
• freedom of association.

The HEWRRs, including minor improvements announced by Ministers Nelson and Andrews on 16 June 2005    .

What improvements have been made to the HEWRRs since their initial announcement on 29 April?

The following improvements have been made to the HEWRRs:

• the time available for Higher Education Providers to comply with the HEWRRs in 2005 has been extended from 30 September 2005 to 30 November 2005; and
• Higher Education Providers are exempted from offering AWAs to casual staff engaged for a period of less than one month until 30 June 2006

The HEWRRs, including these minor improvements announced by Ministers Nelson and Andrews on 16 June 2005    .

What are the eligibility requirements to access increased CGS funding?

To access increased CGS funding, universities will need to meet the HEWRRs as well as the National Governance Protocols.

For 2006, a key determinant will be the nominal expiry date (NED) of a university's existing agreement(s) as at the announcement date.

Universities with existing agreement(s) as at the announcement date with a NED on or before 30 September 2005, must have in place by 30 November 2005, a certified agreement(s) and workplace policies and practices that comply with the HEWRRs.

Universities with existing agreement(s) as at the announcement date, with a NED on or after 1 October 2005, must have in place workplace policies and practices which comply with the HEWRRs, except where compliance with the HEWRRs would be directly inconsistent with the university's obligations under its certified agreement(s) as at the announcement date.

What constitutes an existing agreement in the context of the HEWRRs?

For the purposes of the HEWRRs and access to the 2006 additional Commonwealth Grant Scheme funding, ‘Existing Agreement(s) are defined as collective agreement(s) that have been subject to a concluded ballot as at 29 April 2005 and have subsequently been certified by the Australian Industrial Relations Commission’.  All such agreements will need to be compliant with the HEWRRs by 31 August 2006.

How much funding is linked to compliance with the HEWRRs?

The Federal Government is providing additional Commonwealth Grant Scheme funding to all higher education providers who meet the HEWRRs and the existing National Governance Protocols.  The amounts available are as follows:

• In 2006, 5 per cent of the base CGS funds; and
• In 2007 and any later years, 7.5 per cent of the base CGS funds.

These amounts are not cumulative.  If a higher education provider succeeds in meeting the HEWRRs and the National Governance Protocols in 2005 and receives the increase in its basic grant amount in 2006 but then cannot, for whatever reason, continue to meet the requirements of section 33-15(1) for 2006, an increase in basic grant amount will not be approved for 2007.  The same principle will apply with respect to later years.  There will be no retrospective increases in basic grant amounts.

Compliance for each year’s additional funding is dependent on compliance with the HEWRRs and the National Governance Protocols.

How long will it take to assess draft HEWRR-compliant Agreements and advise the parties of the outcome?

The decision on whether a provider has complied with the HEWRRs (so as to be eligible for the increase in assistance funding under the Commonwealth Grant Scheme) will be made by the Minister for Education, Science and Training. 

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?

The decision will be made by the Minister for Education, Science and Training.

Have any Agreements already been accepted by DEST or DEWR as complying with the HEWRRs? If so, which ones?

No. The decision on whether a provider has complied with the HEWRRs (so as to be eligible for the increase in assistance funding under the Commonwealth Grant Scheme) will be made by the Minister for Education, Science and Training. 

It is however important to remember that consideration for compliance will be based on all relevant agreements, policies and practices and that no specific clause can be evaluated in isolation.

Is the Minister bound to follow the advice of DEST in making a decision on the compliance of Higher Education Providers with the HEWRRs?

The Minister is not bound to adopt any advice or recommendation the Department may provide to him in relation to the making of a decision concerning whether universities comply with the HEWRRs.

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CURRENT BARGAINING ROUND

How do the HEWRRs impact on a university's existing agreement(s)?

Is the Government forcing universities to bargain another certified agreement?

No.  The Government is not forcing universities to engage in bargaining for a new certified agreement.  Rather, the HEWRRs provide incentive for universities to use the bargaining framework under the WR Act to achieve reform in their workplaces.  Utilising agreement making options under the WR Act to develop workplace arrangements tailored to the needs of a university and its employees, consistent with the HEWRRs, will enable the university to attract and retain high performing staff and adapt to changing business needs.

Opting out of bargaining means walking away from a valuable mechanism a university can utilise to encourage workplace reform and cultural change.  The HEWRRs provide incentive for universities to use bargaining to achieve these outcomes.

What do private providers need to do where all staff are employed on individual contracts?

Universities which operate as approved private providers with funding for National Priority Places who employ all staff on individual arrangements will be assessed on the content of their workplace policies and practices, including the template for and/or common elements of their individual agreements, for compliance with the HEWRRs.

Private providers will be required to comply with the HEWRRs by 30 November 2005, and by 31 August in later years, to qualify for the increase in CGS funding available in 2006, and later years respectively.

How will the HEWRRs be implemented?

The HEWRRs will be implemented as guidelines under the Commonwealth Grant Scheme of the Higher Education Support Act 2003.

Proposed changes with respect to s.33-15(1)(b) of the Act will be minimal, and will refer to the guidelines. The guidelines will not contain requirements over and above those already made publicly available    .

Do the HEWRRs apply to employees working in all facilities situated on university campuses?

The HEWRRs apply to all workplace agreements, policies and practices that apply to employees of Higher Education Providers with respect to the capacity of the institution as a higher education provider.

When should all workplace policies and practices meet the HEWRRs?

It is desirable that all Higher Education Provider’s workplace policies and practices should be amended as soon as possible.  However, all workplace policies and practices must meet the HEWRRs by the compliance date of 30 November 2005, except where compliance with the HEWRRs would be directly inconsistent with the Higher Education Provider’s obligations under its existing certified agreement(s).

• This exception only applies to those existing agreements as at 29 April 2005 which had a nominal expiry date on or after 1 October 2005. 
• The exception does not apply to the assessment of compliance with the HEWRRs as at 31 August 2006 (i.e. for 2007 additional CGS funding).

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HEWRR 1 - CHOICE IN AGREEMENT MAKING

When do AWAs have to be offered to new staff?

The HEWRRs require all universities to provide employees with genuine choice and flexibility in agreement making by offering AWAs to all new employees employed after 29 April 2005 and to all other employees by 31 August 2006.  Until 30 June 2006, HEPs are exempt from offering AWAs to casual employees engaged for a period of less than one month.

At the additional CGS funding submission each year, Vice Chancellors are required to attest that all new employees were provided with that genuine choice.  In doing so, Vice Chancellors are attesting all eligible employees were made an AWA offer.  It is therefore important that universities commence to offer AWAs as quickly as possible to ensure all new employees are afforded genuine choice and flexibility in agreement making.

All other employees must receive the offer of an AWA by 31 August 2006, that is, the next cut off date for compliance with the HEWRRs.

Will there be any target or quota on the number of AWA’s that need to be signed?

No.  

Is there some form of Higher Education AWA template?

A higher education AWA template is being developed by the Australian Higher Education Industrial Association (AHEIA) in consultation with the Office of the Employment Advocate (OEA) and DEST.  Enquiries in relation to the template should be forwarded to AHEIA.

The OEA is available to assist in relation to AWA matters .

In addition, DEST is able to provide comment on whether draft agreements comply, or are likely to comply, with the HEWRRs.

How can universities be sure their AWAs will pass the no disadvantage test?

The no disadvantage test is a global test applied by the OEA to all AWAs lodged for approval.

The OEA website contains a wide range of useful resources and advice on AWA matters .

Can you confirm that the HEWRRs require that new employees be offered a choice between an AWA and the certified agreement at the point of employment, ie that positions may not be offered on a “no AWA, no job” basis?

The HEWRRs require all universities to offer AWAs to all new employees employed after 29 April 2005 and to all other employees by 31 August 2006. Until 30 June 2006, Higher Education Providers are exempt from offering AWAs to casual employees engaged for a period of less than one month.  An AWA must be agreed between the employer and employee. 

It is a matter for the Higher Education Provider on what basis employment is offered to new employees.  Offering employment on the basis of an AWA is consistent with the WR Act and not inconsistent 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)?

The HEWRRs require all universities to provide employees with genuine choice and flexibility in agreement making by offering AWAs to all new employees employed after 29 April 2005 and to all other employees by 31 August 2006. Until 30 June 2006, Higher Education Providers are exempt from offering AWAs to casual employees engaged for a period of less than one month.

Does genuine choice imply any difference in content between the AWA and the certified agreement, or are such matters at the employer’s discretion?

The content of an AWA offer is at the discretion of the employer, however, the content of an AWA must be agreed between the employer and employee.

Do the HEWRRs apply to AWAs?

Yes.

By what mechanism will AWAs be assessed as to their HEWRR compliance?

Vice-Chancellors must sign-off on the compliance of AWAs with the HEWRRs. The decision will be made by the Minister for Education, Science and Training.

AWA templates will be assessed in the same manner as any other form of agreement.

Are private providers required to offer AWAs to employees?

Yes, Higher Education Providers which operate as non-Table A providers with funding for national priority places must offer AWAs as prescribed by the HEWRRs if legally possible.

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 Workplace Relations Act 1996, 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”.

The words referred to in the clause regarding AWAs in a Certified Agreement do not in themselves offend the HEWRRs, but, in order for the CA to be compliant with HEWRR 1, there must also be reference in the CA to AWAs operating to the exclusion of the CA or prevailing over the terms of the CA to the extent of any inconsistency.  

We would also question the need for such words when the Workplace Relations Act 1996 is quite explicit with regards to duress and coercion and AWAs.

No. This could force a restriction on the work practices that can be offered by the HEP.  The content of an AWA offer is at the discretion of the employer, however, the content of an AWA must be agreed between the employer and employee.

To protect against such a use or implementation, it may be preferable to exclude the clause or to qualify the clause by adding a further sentence to the model AWA clause provided in HEWRR 1 stating that notwithstanding any other provision in the certified agreement, the employer and employees may enter into an AWA in whatever terms are agreed and that these terms will prevail over the certified agreement.

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HEWRR 2 – DIRECT RELATIONSHIPS WITH EMPLOYEES

What constitutes 'direct consultation'?

The HEWRRs require direct consultation between employers and employees with the involvement of third parties representing employees only where requested by an affected employee.

The mechanism used for the direct consultation between employers and employees is not prescribed in the HEWRRs and is a matter for the university.

Consultative committees must include direct employee involvement.  The method for determining how direct employee involvement is achieved is a matter for the higher education provider.

Is union membership on committees inconsistent with the HEWRRs?

No, union representation on committees is not inconsistent with the HEWRRs. However, such arrangements must be complemented by employee representatives who have been elected, nominated or selected by staff to represent all staff regardless of whether they are not, or are, union members. The method for electing, nominating or selecting staff representatives is a matter for each HEP to determine.

How should the requirement for direct relationships with employees be satisfied in the context of making and negotiating certified 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 there is union involvement in negotiations there must also be employee representation. The employee representatives must be chosen by both union and non-union member employees.

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?

In principle, employee representatives should be chosen by both union and non-union member employees.

Can you confirm that the HEWRRs do not prevent an interim understanding or agreement between NTEU and a University, foreshadowing the negotiation and certification of a HEWRR-compliant s 170LJ Agreement, in accordance with the relevant Government deadline?

DEST is aware that a number of universities have been approached and asked to sign a Memorandum of Joint Intent (MJI). Universities need to comply with the HEWRRs to access increased CGS funding.

Subject to the content of the MJI, singing the MJI may result in a breach of the HEWRRs. For example, if signing an MJI required a university to delay offering AWAs, and in doing so the university did not offer an AWA to all relevant employees, the university may well be in breach of the HEWRRs. If signing an MJI required a university not to involve employee representatives in negotiations of workplace collective agreements then the university may well be in breach of the HEWRRs.

Yes, for instance, if any part of the MJI constitutes an agreement between a HEP and union to comply with the terms of the HEWRRs in certified agreements but to move any non-complying elements of previous certified agreements to separate private agreements this type of agreement will be regarded as a workplace policy or practice for the purposes of the HEWRRs and the HEP will be taken not to have complied with the HEWRRs.

Do the HEWRRs require all consultative committees to include a union representative?

No. The composition of all consultative committees is a matter for each Higher Education Provider. However, where a committee includes union representatives, the committee must also include employee representatives directly elected by all staff.

It has been suggested that a Staff Agreement and Implementation Committee (SAILC) be established to perform various duties 'as assigned to it by the Enterprise Agreement'.  The SAILC would comprise two members nominated by the union and two directly elected staff members, but no management members.

One of the functions of the SAILC would be to consider matters that relate to staff terms and conditions such as grievance procedures, workloads and leave entitlements that are to be taken out of the EB and put into University policy.  For such policies to be approved or amended it would be necessary for the University to gain the agreement of the SAILC.  Monitoring and implementation roles for the SAILC have also been proposed. For a range of matters, the committee will make a final determination. Would this offend the HEWRRs?

The HEWRRs state that the HEP’s workplace agreement, policies and practices are not to inhibit the capacity of the HEP and its employees to respond to changing circumstances.  The HEP’s workplace agreements, policies and practices must not limit or restrict the HEP’s ability to make decisions and implement change in respect of course offering and associated staffing requirements.  The HEWRRs also require that workplace agreements, policies and practices support organisational productivity and performance.

A provision in an agreement that requires the University to gain the agreement of a committee, or any such body, however constituted in a HEP’s agreements, policies or practices, to approve or amend a workplace policy would be inconsistent with the HEWRRs if the HEP does not have the ability to make the final determination.  A requirement for the HEP to gain the approval of a committee before being able to respond to or implement change would inhibit the HEP’s ability to make decisions and as such would be unlikely to support organisational productivity.

In addition, the HEWRRs require that HEP’s workplace agreements, policies and practices provide for direct consultation between employees and the HEP on workplace relations and human resources matters.  A committee like the one described would appear to be inconsistent with this requirement as it does not provide for direct consultation between the HEP and its employees.

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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?

Agreements should be closed and comprehensive, that is, they should displace all agreements, including the current certified agreement.

What does “simple, flexible and principle based” mean with respect to workplace agreements?

Simple, flexible and principle-based workplace agreements should contain essential, relevant information and avoid excessive detail and prescription.  This applies equally to collective and individual agreements.

Detailed processes for managing provisions of agreements can be contained in separate guidelines and policies which are outside the principles-based agreement.  For example, extensive provisions on allowances or performance management processes can be detailed outside of an agreement in guidelines referred to in the principles-based agreement.

Are provisions contained in separate guidelines and policies which are outside the agreements still required to comply with the HEWRRs?

Yes.

Does “workplace flexibility” as referred to in HEWRR 3 cover arrangements in relation to workplace change?

Yes. To comply with the HEWRRs, Higher Education Providers must be able to show that their employment instruments, workplace policies and practices allow for change to be implemented flexibly, and in a timely and efficient manner.

A requirement that HEPs must maintain the “status quo” in the event of a change which is challenged by staff or the union (whether this is included in an express clause or occurs impliedly through the change management process) will not comply with the HEWRRs. A clause requiring union or staff representative consent before universities can respond to change will also not comply with the HEWRRs.

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 offering and associated staffing requirements?

The following are examples of provisions which will infringe HEWRR 3:

• Any provision which unreasonably impede’s the HEP’s ability to take decisions in response to change.
• Provisions which unreasonably impede a HEP from responding to the demands of its operations.
• Any provision which vests final approval for workplace change in any, structure, body or person(s) other than the management of the HEP.
• Any provision which establishes a process whereby disputes are unable to be resolved quickly. 
• Any provision which protects the “status quo” for an unreasonably long period while workplace change is being challenged.

Would the following or similar words in a certified 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.”

Whether the above clause would “inhibit the capacity of the Higher Education Provider…to respond to changing circumstances” and therefore be inconsistent with the HEWRRs would depend on how the clause was applied in practice. The clause would likely be consistent with the HEWRRs if it allowed, in practice, for the efficient resolution of a dispute.

Vice-Chancellors must sign-off on the compliance of their agreements with the HEWRRs.

The preferred position would be for the clause to define the changed work practice as the status quo to be maintained.  In the event that a clause to this effect is not possible, the limitation on management changing work practices should be restricted to a reasonable period.

If the answer to the previous question 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 with a month”?

See answer to previous question.

Would the following or similar words in a certified agreement dispute resolution 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”

Whether the first clause would “inhibit the capacity of the Higher Education Provider…to respond to changing circumstances” and therefore be inconsistent with the HEWRRs would depend on how the clause was applied in practice. The first clause would be consistent with the HEWRRs if, in practice, it allowed for the efficient resolution of a dispute.

Vice-Chancellors must sign-off on the compliance of their agreements, policies and practices with the HEWRRs.

The second clause is not likely to offend the HEWRRs as long as efficient dispute resolution processes were followed.

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 university 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?

This scenario appears to place restrictions on how a Higher Education Provider engages staff.  It would appear therefore to inhibit the capacity of the institution to respond to changing circumstances and as such is likely to be inconsistent with the HEWRRs.

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?

If such a provision operated in practice to restrict the management of underperformance and the Higher Education Provider's ability to respond to changing circumstances, it would not be consistent with the HEWRRs.

Would the inclusion of generic work level or position classification descriptors related to a salary scale in a certified agreement or an AWA offend the HEWRRs?

The HEWRRs provide that a Higher Education Provider’s workplace agreements must be simple, flexible and principle-based documents which avoid excessive detail and prescription.  We suggest all detailed processes be placed in guidelines outside the agreement.  Generic work level or position classification descriptors related to a salary scale would appear to fall into this category.

As well the inclusion of conversion processes and criteria in agreements are likely to be considered prescriptive and excessive in detail. A HEP has the prerogative to offer an employee or former employee a different form of employment and doesn’t need to have this governed or the right fixed in an agreement.

Certified 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?

Such a provision is likely to be consistent with the HEWRRs provided that the university has the right to agree or disagree to converting the relevant employees subject to them meeting pre-determined criteria.

HEWRR 3, among other things, does not allow for the placing of limitations on the forms and mix of employment.The regime described above, while possibly marginally less restrictive than the Award, would nevertheless place restrictions and not be consistent with the HEWRRs. The HEP must have the right to appoint employees to any form of employment.

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”.

While the timeframes in the example provided appear, on face value, to be reasonable, we are reluctant to prescribe the number of days which would constitute a reasonable timeframe.  Instead we suggest that this is a matter for the University to determine in the context of their other workplace policies and practices.  Universities may wish to consider benchmarking themselves against best practice in the sector.

The clause would need to respect the distinction between principle and procedure. A complaint clause would be one which set out a general definition of the conduct to be reviewed and a simple, logical and timely process for investigation and review.

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.”

There could be advantages in changing the term "... limited to" to "...including" to ensure more flexibility in the agreement.

Would a provision in a certified agreement which in application prevented a higher education provider from making employment or promotion conditional upon the acceptance of an AWA be HEWRR compliant?

There is no requirement in the HEWRRs that an employee must be offered the choice between a certified agreement and an AWA.

Any provision which prevented a HEP from making employment or promotion conditional upon the acceptance of an AWA would be contrary to HEWRR 3 which requires that a HEP's workplace arrangements must not limit or restrict the HEP's ability to make decisions and implement change in respect of course offerings and associated staffing requirements, including not placing limitations of the forms and mix of employment arrangements.

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.

Yes - the clause would be inconsistent with the HEWRRs as it would limit the university from tailoring conditions of employment to the circumstances of the university and restrict the university from implementing change by placing parameters on the types of work an employee must perform.

Does a provision requiring that the university "offer a genuine and informed choice between the AWA and this Agreement" prevent the university offering employment on the basis of an AWA, and thereby infringing HEWRR 3 which requires no limitation on the forms of employment?

No. This provision in an enterprise bargaining agreement will, by its application - only apply to existing employees who are already be covered by the agreement. As these employees are already covered by the agreement, there is no limitation on the form of employment an employer may offer as it is no more than giving employees the choice between their current arrangements and an AWA. Any new or prospective employee will not be subject to the provisions of the agreement, and therefore a university remains able to offer employment conditional upon the acceptance of an AWA.

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HEWRR 4 – PRODUCTIVITY AND PERFORMANCE

What is meant in rewarding high achieving staff?  Does the Academic promotions process meet this requirement?

The HEWRRs require Higher Education Provider’s workplace agreements, policies and practices to include a fair and transparent performance management scheme which rewards high performing individual staff.  This means that it must be clear as to how different performance levels are determined and how each will be rewarded.

For example, employees and managers may develop written performance, planning and review documents, and be assessed against the objectives as outstanding, very good, successful, development required or unsatisfactory etc.  High performance in such cases could, for example, be addressed via advancement, bonuses, salary loadings and/or non-monetary rewards.  Rewards for high performance may not necessarily be limited to promotions; for example there may be instances where staff are high performing but are not eligible for promotion.

The details of the scheme or performance management framework are a matter for the university to determine.

Is a committee which manages poor performance consistent with the HEWRRs?

It is consistent with the HEWRRs to have committee processes to manage poor performance, but the process must be transparent and efficient processes and the committee must, if it has representatives other than management, include representatives elected by all staff.

A clause which provided that these functions can be performed by the most appropriate officer or body for the particular HEP would be HEWRR compliant.

Can DEST suggest an example of elements in a performance management system that would make it “best practice”? Are universities required to adopt a performance management system like this in order to comply with the HEWRR on productivity and performance?

The following is suggested as an example of a “best practice” performance management system. It is intended for general guidance only and universities may find it of use in developing or refining their performance management systems. It is not intended that universities must adopt this exact model to comply with the HEWRR on productivity and performance.

PRINCIPLES OF BEST PRACTICE PERFORMANCE MANAGEMENT SYSTEMS

A framework for effective best practice performance management could include:

• Clarifying performance objectives
• Periodic performance appraisal of individuals or teams against the achievement of these objectives
• Feedback from this appraisal
• Recognition or reward for performance, including performance pay, salary progression guided by performance or non-pay reward system
• Team and individual development to build capabilities
• Counselling, or other action to deal with poor performance
• Establishing a link between the development of capabilities with organisational and business planning
• Evaluating the contribution of individual, team and organisational performance

Features of a best practice performance management system:

• The performance management system is designed to meet the needs of the organisation, not developed in isolation from other business practices.
• The system aligns with other process used such as business planning, promotion, recruitment, reward systems and the use of existing work standards or development of work standards.
• The system is documented, and all documentation is available to all staff to be covered by the system.
• The process includes some sort of form. This may be paper based or online but provides guidance to all as to what is expected.
• Feedback is provided regularly in both a formal and informal manner. Feedback focuses on measurable and observable outcomes and behaviours.
• The system is simple and easy to implement and to understand.
• The central piece of a system is a set of objectives to be achieved over a set time frame. These will be set to meet the needs of the individual depending on their work level, experience, skills and work outcomes required, and are able to be monitored over an agreed time period.
• A learning needs component is included. This focuses on what the individual needs to be able to meet the outcomes as agreed.
• All objectives are agreed between the individual and the supervisor or manager. This agreement is formal eg a signed acknowledgement or an online acceptance.
• Formal reviews focus on the outcomes as set, plus acknowledge any additional work undertaken in the period. If objectives cannot be met for reasons outside of an individual’s control, this is acknowledged. The review is documented and agreed.

Best practice features of a managing underperformance system

• Timeframes for reviewing to address underperformance will generally be more frequent than standard performance review timeframes, dependent on the work to be monitored.
• Observable and measurable short term objectives are set to address the specifics of the under performance issue.
• Individuals are afforded natural justice in this process, including the right of reply and the ability to have a support mechanism of their choice.

The underperformance system is established, documented and made available in advance, and then adhered to during any underperformance review process.

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HEWRR 5 – FREEDOM OF ASSOCIATION

Do the HEWRRs prevent universities from allowing unions use of university facilities?

The HEWRRs state that Higher Education Providers must not use Commonwealth Grant Scheme funds to pay union staff salaries, or fund union facilities and activities.

Union facilities are defined as those which are dedicated for union use only.  Under the HEWRRs, universities are not prohibited from allowing unions to use their facilities e.g. meeting rooms, as long as:

• the right of entry provisions in the Workplace Relations Act have been satisfied;
• the facilities are not solely used for this purpose; and
• the facilities are also available to staff representatives who may not necessarily be members of a union.

Is it permissible for universities to have internet links to union websites on their websites?

Links can be provided to union or other relevant web sites as long as the context of the link does not encourage or discourage union or other membership.

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EMPLOYEE ISSUES

Will I be forced to accept an AWA?

No.  The HEWRRs merely require universities to offer AWAs to their employees.  Employees continue to have the choice to accept or decline an AWA offer.

Are unions still able to represent me?

Yes.  The Workplace Relations Act provides for an employee to choose whether or not he/she wants to belong to a union.  The WR Act also provides that an employee must not be subject to any victimisation or discrimination on the grounds that they are, or are not, a member of a union.

The HEWRRs provide university employees with the choice to retain access to union representation, to access alternate representation, or not to be represented at all.

Will I still have access to a certified agreement?

Yes.  The HEWRRs do not prevent university employees from being covered by a certified agreement.  If a university has a certified agreement in place the employee may choose to be covered by this agreement.  The HEWRRs simply provide for employees to have genuine choice in agreements through offering AWAs.

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OTHER

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 (30 November 2005 or 31 August 2006)?

DEST does not provide advice on compliance with the HEWRRs.  Higher Education Providers are able to contact DEST with questions about the Higher Education Workplace Relations Requirements (HEWRRs).  DEST's comments are in no way binding nor do they represent that the Minister will or will not make any particular decision regarding compliance with the HEWRRs.

The HEWRRs require all universities to offer AWAs to all new employees employed after 29 April 2005 and to all other employees by 31 August 2006.  Until 30 June 2006, Higher Education Providers are exempt from offering AWAs to casual employees engaged for a period of less than one month. Offering employment on the basis of an AWA is consistent with the WR Act and not inconsistent with the HEWRRs.

Can you confirm previous advice that the negotiation or making of an Agreement under Section 170LJ of the Workplace Relations Act (agreement with an organisation of employees) would not contravene the HEWRRs?

All agreements, policies and procedures are subject to compliance with the HEWRRs.The making of an Agreement under section 170LJ of the Workplace Relations Act 1996 in itself would not contravene the HEWRRs as long as the relevant processes were compliant with the HEWRRs and the resulting section 170LJ Agreement, as well as all other workplace agreements, including policies and practices, are HEWRR compliant.

If an employer sought to negotiate a s 170LJ Agreement with NTEU, 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 of right?

Subject to the requirements of the WR Act, the relevant union could, at the request of employee union members, be involved in the making and/or varying an agreement on behalf of those members. However, employee involvement in negotiations for such an agreement must also include direct employee involvement.

Can you confirm previous advice that the requirement for direct relationships with employees can be fulfilled by including staff representatives as well as union representatives on relevant consultative, dispute and other committees established under the certified agreement?

The requirement for direct relationships under the HEWRRs means that the employee representatives must be chosen by both union and non-union member employees.

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Where can I get further information on the HEWRRs?

If you would like further information or advice on the HEWRRs please send an email to workplace_productivity@dest.gov.au, a contact point managed by the Department of Education Science and Training.  Comments provided by the Department are made by way of suggestion only.  The decision on whether a Higher Education Provider has complied with the requirements will be made by the Minister for Education, Science and Training.