How are the new laws changing casual employment?
The Closing Loopholes No 2 Act makes two significant changes affecting casual employment in the tertiary education sector:
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It changes the definition of casual employment so that casual employment will only exist when there is no ‘firm advance commitment to continuing and indefinite work’ based on ‘the real substance, practical reality and true nature of the employment relationship’. These changes mean that employers can no longer engage workers as casuals simply by failing to promise ongoing work in the contract when there is a mutual expectation of ongoing employment. Under these changes, the substance of working arrangements prevails over the contractual form.
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It excludes from casual employment teaching and academic staff at higher education institutions covered by the sector’s award/s whose contracts include provision for termination at the end of an identifiable period. Under these changes, a sessional academic engaged to teach for one semester cannot be employed as a casual employee – s/he has to be engaged on a fixed-term or continuing basis. All public universities in Australia are covered by the higher education awards.
A chronic failure to respect the rights of workers
These laws provide a vital opportunity for universities to overhaul their insecure workforce and to live up to community expectations that they act as ‘exemplary employers’. As Victorian Government has made clear, ‘Victorian universities (should) demonstrate the highest ethical standards as leaders and major employers in the Victorian community’.
However, some universities are taking the low road, seeking to circumvent these job security laws in two main ways:
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Engaging casual academics prior to these laws coming into effect on 26 August 2024; and
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Engaging teaching academics on short-term contracts that do not provide for regular hours of work, for instance, two-week contracts with hours allocated on a weekly basis.
These strategies are both ethically and legally dubious. As it is, our sector is a priority area for the Fair Work Ombudsman (FWO) – see the FWO’s priority areas which ‘focus on industries that are at significant risk or demonstrate a history of systemic non-compliance’.
What you can do
Systematic circumvention requires a collective response. NTEU is collecting feedback on employer evasion strategies with the aim of providing this information to the Fair Work Ombudsman and devising an enforcement strategy of our own. We will also be in contact with the Victorian and Commonwealth Education Ministers to make clear our serious concerns about how universities are ostensibly changing their business models to evade the new laws.
We want to hear from you!
If you are, or work with, a casual employee in the higher education sector and would like to (confidentially) get in touch about how your institution is responding to the new casual employment laws, please let us know.
In Unity,
Sarah Roberts (Secretary), Ruth Jelley (Assistant Secretary - Professional Staff) and Prof. Joo-Cheong Tham (Assistant Secretary - Academic Staff)
NTEU Victorian Division