[2018] FWCFB 1087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Education group
(AM2015/6)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS

SYDNEY, 20 FEBRUARY 2018

4 yearly review of modern awards – Higher Education Industry – Academic Staff – Award 2010 and Higher Education Industry – General Staff – Award 2010 – Fair Work Act 2009, ss. 156, 138 and 134.

Chapters		Paragraph
1.	Introduction	[1]
2.	The Statutory framework	[7]
3.	The NTEU’s Case (also sets out the CPSU’s submissions)	[24]
The CPSU’s submissions	[28]
NTEU Evidence	[29]
4.	The Go8’s Case	[100]
Go8 Evidence	[103]
5.	AHEIA’s Case	[126]
AHEIA Evidence	[130]
6.	Coverage	[152]
7.	Fixed-term Employment Categories	[155]
Consideration of the issues	[159]
8.	Fixed-term Expiry Severance Pay	[165]
Consideration of the issues	[172]
9.	Industry Specific Redundancy Provisions (Academic Staff Award)	[181]
Consideration of the issues	[197]
10.	ICT Allowances	[217]
Consideration of the issues	[227]
11.	Professional and Discipline Currency Allowance	[231]
Consideration of the issues	[236]
12.	Classification of Academic staff	[244]
Consideration of the issues	[255]
13.	Academic Hours of Work	[259]
Consideration of the issues	[275]
14.	Rates of Pay – Linking to Classification Descriptors (General Staff Award)	[282]
Consideration of the issues	[289]
15.	Working Hours and Overtime (General Staff Award)	[297]
Consideration of the issues	[311]
16.	Changes to Sessional Academics Rates Schedule	[317]
Consideration of the issues	[324]
17.	Casual Conversion (Academic Staff Award)	[329]
18.	Common Issue – Annual Leave	[333]
Consideration of the issues	[340]
19.	Common Issue – Award Flexibility	[350]
Consideration of the issues	[355]
20.	Next Steps	[361]

ABBREVIATIONS

1988 Academic Staff Award	Australian Universities Academic Staff (Conditions of Employment) Award 1988
1988 Post Compulsory and Higher Education Award	Australian Post Compulsory and Higher Education Academic Staff (Conditions of Employment) Award 1988
1995 Award	Universities and Post Compulsory Academic Conditions Award 1995
1998 Award	Higher Education Contract of Employment Award 1998
1999 Award	Universities and Post Compulsory Academic Conditions Award 1999
2011-2012 Survey	2011-2012 Work and Careers in Australian Universities Survey
2015 Uni Survey	NTEU 2015 State of the Uni Survey
national online survey	2015-2016 national online Survey
ABI & NSWBC	Australian Business Industrial and the New South Wales Business Chamber
ABS	Australian Bureau of Statistics
Academic Staff Award	Higher Education Industry – Academic Staff – Award 2010¹
Act	Fair Work Act 2009 (Cth)
ACU	Australian Catholic University
ACU Agreement	Australian Catholic University Staff Enterprise Agreement 2013-2017²
AHEIA	Australian Higher Education Industrial Association
AIRC	Australian Industrial Relations Commission
ANU	Australian National University
ARC	Australian Research Council
Awards	Higher Education Industry – Academic Staff – Award 2010 and Higher Education Industry – General Staff – Award 2010 3
BOOT	Better off overall test as per s.193 of the Act
Centennial Mining	Centennial Mining Services Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) 4
Commission	Fair Work Commission
CPSU	Community and Public Sector Union
CSU	Charles Sturt University
FTE	Full Time Equivalent
HEW	Higher education worker
HILDA	Household, Income and Labour Dynamics in Australia
General Staff Award	Higher Education Industry – General Staff – Award 2010
Go8	Group of Eight Universities - University of Western Australia, University of Adelaide, University of Melbourne, Monash University, Australian National University, University of New South Wales, University of Sydney, and University of Queensland
ICT	Information and communication technology
Latrobe	Latrobe University
Macquarie	Macquarie University
Macquarie Agreement	Macquarie University Academic Staff Enterprise Agreement 2014⁵
Monash	Monash University
Monash Agreement	Monash University Enterprise Agreement (Academic and Professional Staff) 2014 6
MoRA	Measure of Research Activity
MSALs	Minimum Standards for Academic Levels
NES	National Employment Standards as set out in Part 2-2 of the Fair Work Act 2009
NTEU	National Tertiary Education Union
Penalty Rates Decision	4 Yearly Review of Modern Awards - Penalty Rates Decision 7
Preliminary Issues Decision	4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues
QUT	Queensland University of Technology
RMIT	RMIT University
Swinburne University	Swinburne University of Technology
TOIL	Time off in lieu of overtime
UM	The University of Melbourne
UM Agreement	University of Melbourne Enterprise Agreement 2013 8
UNSW	University of New South Wales
UQ	The University of Queensland
UoS	University of Sydney
UoS Agreement	University of Sydney Enterprise Agreement 2013-2017 9
UTAS	University of Tasmania
UTAS Agreement	University of Tasmania Staff Agreement 2013-2016¹⁰
UW	University of Wollongong
UW Agreement	University of Wollongong (Academic Staff) Enterprise Agreement 2015 11
UWA	The University of Western Australia
VU	Victoria University
VU Agreement	Victoria University Enterprise Agreement 2013 12

1. INTRODUCTION

[1] On 11 November 2014 the President issued a direction that this Full Bench hear and determine the substantive issues raised during the 2014 four yearly review of modern awards (the Review) with respect to the Education Group of Awards, i.e. the Educational Services (Post-Secondary Education) Award 2010 13, the Educational Services (Schools) General Staff Award 201014, the Higher Education Industry – Academic Staff – Award 2010¹⁵(Academic Staff Award) and the Higher Education Industry – General Staff – Award 2010¹⁶(General Staff Award).

[2] This decision concerns the two higher education industry awards referred to the Full Bench. The issues that this Full Bench has been directed to determine were set out in Schedules A.3 and A.4 to the President’s directions as amended on 21 April 2015. Specifically the issues were:

• coverage of research institutes;

• coverage;

• restriction on use of fixed-term contract;

• fixed-term employment categories;

• fixed-term expiry severance pay;

• industry specific redundancy provisions (Academic Staff Award only);

• information and communication technology (ICT) allowances;

• professional and discipline currency allowance;

• hours of work;

• classification of academic staff;

• rates of pay – linking to classification descriptors;

• working hours and overtime; and

• casual conversion.

[3] A number of issues were either agreed between the parties prior to being heard or are no longer pressed, e.g. claims regarding the restriction on use of fixed-term contract.

[4] The claims in respect of the remaining issues can be summarised as follows:

• Coverage of research institutes – the National Tertiary Education Union (NTEU) seeks to vary the Awards to cover staff in medical, health and research institutes. The Full Bench has dealt with this issue in a separate decision. 17

• Coverage – Australian Higher Education Industrial Association (AHEIA) proposed the deletion of clause 4.3 of the Academic Staff Award on the basis that it was no longer applicable. This claim is considered in Chapter 6 of this Decision.

• Fixed-term employment categories – AHEIA seeks the inclusion in the Awards of an additional circumstance in which persons can be employed as a fixed-term employee, i.e. where an area is under review. This claim is considered in Chapter 7 of this Decision.

• Fixed-term expiry severance pay – both AHEIA and the Group of Eight Universities (Go8) seek the deletion from the Awards of provisions providing for the payment of severance pay upon the expiry of fixed-term employment. These claims are considered in Chapter 8 of this Decision.

• Industry specific redundancy provisions – AHEIA seeks the deletion of clause 17—Industry specific redundancy provisions of the Academic Staff Award, whilst the Go8 seeks to vary clause 17.6 of the Award which provides an extended period of notice of termination for employees not accepting redundancy to align the period of notice with the National Employment Standards (NES) as per clause 15 of the Award. The NTEU seeks to replace the word ‘context’ in clause 17.1(b)(ii) of the Award with the word ‘content’. These claims are considered in Chapter 9 of this Decision.

• ICT allowances – the NTEU seeks to vary the Awards to provide for allowances to be paid to employees in respect of the costs of establishing, maintaining and using their own telephone, mobile phone, email and internet in circumstances where they are required to do so to satisfactorily perform their duties. This claim is considered in Chapter 10 of this Decision.

• Professional and discipline currency allowance – the NTEU seeks to vary the Academic Staff Award to provide for compensation for time spent by casual academic staff maintaining currency in an academic discipline or field of study and keeping abreast of employer policies. This claim is considered in Chapter 11 of this Decision.

• Classification of academic staff – the NTEU seeks to vary the Academic Staff Award to provide that in the absence of a bona fide academic promotion system academic employees may seek to enforce the correct classification and rate of pay for the work that they perform on the basis of the Minimum Standards for Academic Levels (MSALs). This claim is considered in Chapter 12 of this Decision.

• Academic hours of work – the NTEU seeks to vary the Academic Staff Award to provide a method for determining ordinary hours of work for academic staff whilst taking into account the unique nature of academic work. This claim is considered in Chapter 13 of this Decision.

• Rates of pay – linking to classification descriptors – the NTEU seeks to vary the General Staff Award to update the classification definitions in the General Staff Award and to make it clear that classifications are the determinant for classifying general staff. This claim is considered in Chapter 14 of this Decision.

• Working hours and overtime – the NTEU proposes that the General Staff Award be varied to impose an obligation on employers to take active steps to ensure that staff are only working additional hours if they are appropriately compensated through overtime payments, time off in lieu or similar. This claim is considered in Chapter 15 of this Decision.

• Changes to sessional academics rates schedule – key aspects of the NTEU claim were clarification of the points in the salary structure at which relevant doctoral qualifications and full subject coordination duties became relevant to determining the rate of pay and the insertion in the Academic Staff Award of definitions of the terms ‘lecture’, ‘tutorial’, ‘repeat lecture’, ‘repeat tutorial’ and ‘associated working time’. This claim is considered in Chapter 16 of this Decision. The submissions made by Australian Business Industrial and the New South Wales Business Chamber (ABI & NSWBC) were limited to this claim given its overlap with a similar claim by the NTEU in respect of the Educational Services (Post-Secondary Education) Award 2010. 18 Accordingly, reference to those submissions is limited to Chapter 16.

• Casual conversion – the NTEU has foreshadowed an application to vary the Academic Staff Award to provide for the conversion of certain academic casual work. This issue is discussed at Chapter 17 of this Decision.

[5] In addition, two common issues relating to the Awards, i.e. annual leave and award flexibility, were referred to the Full Bench for determination on 23 November 2015 19 and 24 April 201620 respectively. The annual leave issue concerns both Awards, while the award flexibility issue only relates to the General Staff Award. The issues are discussed at Chapters 18 and 19 respectively of this Decision.

[6] Finally, we note that, permission was granted for both the Go8 and ABI & NSWBC to be legally represented. In exercising the discretion available to it to grant permission the Full Bench was satisfied that the circumstances set out in s.596(2)(a) of the Fair Work Act 2009 (Cth) (the Act) existed in this case.

2. THE STATUTORY FRAMEWORK

[7] The Act provides that the Fair Work Commission (Commission) must conduct a 4 yearly review of modern awards (s.156(1)). Section 156(2) deals with what has to be done in a review:

“(2) In a 4 yearly review of modern awards, the FWC:

(a) must review all modern awards; and

(b) may make:

(i) one or more determinations varying modern awards; and

(ii) one or more modern awards; and

(iii) one or more determinations revoking modern awards; and

Note 1: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 2: For reviews of default fund terms of modern awards, see Division 4A.”

[8] Subsections 156(3) and (4) deal with the variation of modern award minimum wages in a Review and are not relevant for present purposes.

[9] Section 156(5) provides that in a review each modern award is reviewed in its own right, however, this does not prevent the Commission from reviewing two or more modern awards at the same time.

[10] The general provisions relating to the performance of the Commission’s functions apply to the Review. Sections 577 and 578 are particularly relevant in this regard. In conducting the Review the Commission is able to exercise its usual procedural powers, contained in Division 3 of Part 5-1 of the Act. Importantly, the Commission may inform itself in relation to the Review in such manner as it considers appropriate (s.590).

[11] The modern awards objective is central to the Review. The modern awards objective applies to the performance or exercise of the Commission’s “modern award powers”, which are defined to include the Commission’s functions or powers under Part 2-3 of the Act. The Review function in s.156 is in Part 2-3 of the Act and so will involve the performance or exercise of the Commission’s “modern award powers”. It follows that the modern awards objective applies to the Review.
[12] The modern awards objective is set out in s.134 of the Act, as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2–6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

[13] The modern awards objective is directed at ensuring that modern awards, together with the NES, provide a “fair and relevant minimum safety net of terms and conditions” taking into account the particular considerations identified in paragraphs 134(1)(a) to (h). The objective is very broadly expressed. 21 The obligation to take into account the matters set out in paragraphs 134(1)(a) to (h) means that each of these matters must be treated as a matter of significance in the decision-making process.22

[14] No particular primacy is attached to any of the s.134 considerations and not all of the matters identified will necessarily be relevant to a particular proposal to vary a modern award.

[15] There is a degree of tension between some s.134 considerations. The Commission’s task is to balance the various considerations and ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions.

[16] The modern awards objective requires the Commission to take into account, among other things, the need to ensure a “stable” modern award system (s.134(1)(g)). The need for a “stable” modern award system supports the proposition that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The extent of the merit argument required will depend on the variation sought. As the Full Bench observed in the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues decision (the Preliminary Issues Decision):

“Some proposed changes may be self evident and can be determined with little formality. However, where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.” 23

[17] In the Review the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time that it was made. 24 The proponent of a variation to a modern award must demonstrate that if the modern award is varied in the manner proposed then it would only include terms to the extent necessary to achieve the modern awards objective (see s.138). What is “necessary” in a particular case is a value judgment based on an assessment of the s.134 considerations having regard to the submissions and evidence directed to those considerations.25

[18] The Full Bench in the 4 Yearly Review of Modern Awards – Penalty Rates Decision (the Penalty Rates Decision) 26 made it clear that it was not necessary, in order to justify the variation of a modern award, that a “material change in circumstances” since the making of the modern award(s) under review be demonstrated.27

[19] In performing functions and exercising powers under a part of the Act (including Part 2-3 – Modern Awards) the Commission must take into account the objects of the Act and any particular objects of the relevant part (see s.578(a)). The object of Part 2-3 is expressed in s.134 (the modern awards objective) to which we have already referred. The object of the Act is set out in s.3 as follows:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.”

[20] Finally, we note that the Full Bench in the Penalty Rates Decision 28summarised the task of the Commission in the conduct of the 4 Yearly Review as follows:

“1. The Commission’s task in the Review is to determine whether a particular modern award achieves the modern awards objective. If a modern award is not achieving the modern awards objective then it is to be varied such that it only includes terms that are ‘necessary to achieve the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of any proposed variation, but the focal point of the Commission’s consideration is upon the terms of the modern award, as varied.

2. Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

3. In conducting the Review it is appropriate that the Commission take into account previous decisions relevant to any contested issue. For example, the Commission will proceed on the basis that prima facie the modern award being reviewed achieved the modern awards objective at the time it was made. The particular context in which those decisions were made will also need to be considered.

The particular context may be a cogent reason for not following a previous Full Bench decision, for example:

• the legislative context which pertained at that time may be materially different from the FW Act;

• the extent to which the relevant issue was contested and, in particular, the extent of the evidence and submissions put in the previous proceeding will bear on the weight to be accorded to the previous decision; or

• the extent of the previous Full Bench’s consideration of the contested issue. The absence of detailed reasons in a previous decision may be a factor in considering the weight to be accorded to the decision.” 29 (Endnotes omitted)

[21] In Shop, Distributive and Allied Employees Association v The Australian Industry Group 30a Full Court of the Federal Court of Australia considered applications made by the Shop, Distributive and Allied Employees Association and United Voice for judicial review of the Full Bench’s Penalty Rates Decision.31 In rejecting the applicants’ case the Full Court stated among other things:

“[38] The meaning of s 156(2) is clear. The FWC must review all modern awards under s 156(2)(a). In that context “review” takes its ordinary and natural meaning of “survey, inspect, re-examine or look back upon”. Consequential upon a review the FWC may exercise the powers in s 156(2)(b). In performing both functions the FWC must apply the modern awards objective as provided for in s 134(2)(a).” 32

[22] The Full Court in its decision also referred to the decision in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd 33as follows:

“[45] As explained in Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd … at [28]–[29] by Allsop CJ, North and O’Callaghan JJ:

[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 — terms may and must be included only to the extent necessary to achieve such an objective.

[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.” (Underlining added, citation omitted)

[23] We respectfully agree with these approaches and follow them in this case.

3. THE NTEU’s CASE

[24] The NTEU submitted that the proper framework for consideration of the changes it sought to the Awards was the Full Bench decision in the Preliminary Issues Decision. 34 The NTEU also noted in its submissions that it was proceeding on the basis that the Commission was not limited to granting or refusing the claims of the parties and that were the Commission not convinced of the merit of what had been proposed that the Commission was obliged to formulate its own solution to that problem, preferably with the assistance of the participating parties.

[25] Specifically, the NTEU sought that: 35

• the Academic Staff Award be varied to

• include an enforceable limit on working hours for academic employees,

• include payment for policy familiarisation and professional and discipline currency for casual academic employees,

• provide access to reclassification in circumstances where an academic employee did not have access to academic promotion,

• address drafting errors regarding casual academic rates of pay,

• correct a long standing typographical error in the academic redundancy provisions, and

• include a new provision for the conversion of certain casual academic work;

• the General Staff Award be varied to

• include a provision obliging employers to take active steps to prevent the working of uncompensated additional hours by general staff,

• reinsert an express link between the rates of pay and the classification definitions, and

• incorporate minor updates to classification definitions; and

• both the Awards be varied to

• replace the words ‘full-time employment’ in clause 11 of the Academic Staff Award and clause 10 of the General Staff Award with the words ‘continuing’ employment, with consequential amendments to the definitions of full time and part-time employment,

• include a new allowance for personal information and communication technology (ICT) expenses incurred by employees for work purposes, and

• cover independent research institutes.

[26] The NTEU opposed the bulk of the variations proposed by the Go8 and AHEIA but did not oppose AHEIA’s proposal to delete clause 4.3 from the Academic Staff Award.

[27] In its oral closing submissions the NTEU essentially drew on its written submissions. Beyond that, key general aspects of the NTEU’s oral closing submissions included its view that: 36

• the central test in this matter was whether what was sought was necessary to achieve the modern awards objective; and

• most of the employer evidence in this case was from senior managers, with the NTEU adding that very little of their evidence was backed up by data or hard information and as such was mostly opinion or conclusion evidence.

The CPSU’s submissions

[28] The Community and Public Sector Union (CPSU) supported the NTEU’s submissions in respect of the General Staff Award and in particular urged the Commission to adopt the NTEU’s proposed variations in respect of working hours and overtime for general staff. 37

NTEU Evidence

[29] The NTEU led evidence from 23 witnesses, with their witness evidence summarised below.

Elodie Janvier 38

[30] Ms Janvier is employed by Flinders University as Team Leader, Research Support. Attached to Ms Janvier’s witness statement were extracts from her personnel records which she deposed demonstrated that her accrued annual leave entitlements were carried over when her fixed term contracts ending on 14 August 2014 and 15 March 2015 expired and were replaced by new fixed term contracts. Ms Janvier was not required for cross examination.

Anthony Wilkes 39

[31] Mr Wilkes has worked for the University of Adelaide as an Anatomy Technical Officer in the School of Animal Veterinary Science at the Roseworthy campus since 2008. Mr Wilkes’ role requires him to, among other things, order carcasses and other parts for dissection for the entire School. Mr Wilkes deposed in his witness statement that:

• for the first couple of years his hours were informally self-managed;

• after that he was informed that he needed to keep track of his hours for reference and as such began to keep a spreadsheet of his hours, adding that within the first two years of his employment he had accumulated approximately 120 hours of time off in lieu of overtime (TOIL);

• since then the School had acted to prevent such incidents by employing a casual assistant to help him during peak times (between March and November), adding that he was happy with this arrangement as it provided him with some flexibility in his working day;

• during non-peak times he would take the occasional day off or even leave early every so often to keep his TOIL to a minimum, adding that he liked having this flexibility;

• there were operational reasons why he needed to work long hours, including that practical classes were scheduled to finish at 5.00 pm and there was generally one and a half hours of clean-up after each practical class;

• the School also ran occasional weekend workshops two or three times a year which he attended for 12 hours, adding that he was paid for the actual time spent working which was about four or five hours with the remainder of the time claimed as TOIL;

• it was not a requirement of his job to check emails after hours, though he sometimes did check and respond to emails out of hours;

• his current working of unrecorded hours was limited to working through the occasional lunchtime and small periods too short to be worth recording, adding that he rarely had to work through his lunch break due to time constraints; and

• while his supervisor encouraged him to finish work as soon as he could after 5.00 pm he had never been specifically directed to go home.

[32] The key aspect of Mr Wilkes’ oral evidence was that he did not see any need to change his arrangements in relation to working additional hours as he liked what he had.

Ken McAlpine 40

[33] Mr McAlpine provided three witness statements in which he provided a range of material going to aspects of the NTEU’s claims, including the results of two surveys conducted by the NTEU in 2015 (i.e. the NTEU 2015 State of the Uni Survey (2015 Uni Survey) and the NTEU Academic Workload Survey). Among other things, Mr McAlpine deposed in his witness statements that:

• among academic staff, workload was an issue of widespread concern;

• 2011 Census data obtained from the Australian Bureau of Statistics (ABS) by the NTEU indicated that 82.7 per cent of respondents who identified as university lecturers and tutors indicated that they worked more than 40 hours per week in the week prior to the Census;

• a 2011 survey commissioned by the then Commonwealth Department of Education, Employment and Workplace Relations to determine how much effort was going into Australian Competitive Grant research within universities indicated that across all institutions average hours per full-time equivalent (FTE) were 96.25 hours per fortnight;

• based on his experience the following propositions were generally true across non-casual academic staff covered by the Academic Staff Award

• in many cases academic staff will have substantial input into decisions about which units they will teach, though decisions about whether a unit was to be taught and who would teach it were ultimately a decision for management,

• for most non-casual academics there is a practice of consulting them about the size of their teaching allocation, though ultimately this was again a question for management,

• academics exercised some autonomy about how much time they spent in teaching related duties,

• academics exercised little or no autonomy in relation to administration which took a considerable amount of academic time,

• it would be almost unheard of for an academic to be directed to research a specific question or to apply for a research grant about that question,

• there were important respects in which the autonomy of much of the research work of academics was very limited, i.e. including requirements that research bring in research income, that academics apply for a certain number of research grants, that research comply with the strategic direction of the university and that research outputs such as publications comply with certain metrics such as where they are published;

• about 28 per cent of all non-casual academic staff were employed in research only functions, with nearly all of these employed on fixed term projects of limited duration.

[34] Mr McAlpine also disputed employer contentions that the type of regulation which the NTEU was seeking was at odds with the regulation of academic workloads internationally.

[35] Key aspects of Mr McAlpine’s oral evidence were that: 41

• in the making of the modern award, the NTEU had not sought the inclusion of a policy familiarisation allowance, a discipline currency allowance, enhanced overtime arrangements for general staff or a claim for overtime for academic staff, though the issues had been pursued by the NTEU in bargaining rounds:

• one of the reasons for not doing so was that the evidentiary base was weaker in 2010 than it is now;

• it was not the NTEU’s position to seek to have some of its award claims in this matter translated into bargaining claims in the current and future bargaining rounds;

• while the NTEU had negotiated clauses in every enterprise agreement at public universities which dealt with the allocation of academic work, the clause which it sought to have inserted into the Academic Staff Award had not been sought in any of those enterprise agreements;

• academic staff enjoyed more flexibility than general staff as to when, where and how they worked;

• to the extent that autonomy, flexibility, academic freedom and self-direction existed they were highly valued by academic staff;

• academics do have a significant degree of control over many of their service activities;

• academics were not told what they had to research;

• teaching contact hours were in the order of 6 to 10 hours per week during a teaching period which averaged out to around 3 to 4 contact hours a week across the entire year;

• in relation to research work, subject to there being a reasonable minimum period within which to do it, the actual hours spent on research was a function of what the academic chose to pursue and how they chose to pursue it;

• there was a lesser requirement for academic staff to attend the university;

• 2016 was the first time that the NTEU had raised the prospect of overtime being a relevant or necessary part of award or industrial regulation for academic staff;

• with regard to the clauses dealing with academic workload at Attachment B of Exhibit G, with the possible exception of the clause relating to the Australian Catholic University (ACU), none of those clauses provided for the payment of overtime or the recording or monitoring of research hours;

• further, those clauses with some limited exceptions, provided a system of internal review of workload allocation;

• clause 22 of the Academic Staff Award as currently framed met the requirements of s.147 of the Act;

• with regard to the NTEU’s proposed hours of work clause

• there was scope for disagreement as to what activities would be considered within the concept of “required work”, 42

• it would be well understood that an academic would be assumed to be at work if they were not on leave, and

• it might well be the case that hours of work may differ significantly for academics in the same discipline, at the same level, with similar teaching workloads but working at different institutions with different performance expectations;

• in respect of the proposed policy familiarisation allowance, it was not necessary for casual academic staff to have read the policies just as it was not necessary for them to have done any preparation to get paid for preparation time for lectures or tutorials;

• there were other resources available to all staff where they could access and obtain information regarding policies if necessary;

• the NTEU considered academic promotion to be the appropriate mechanism for academics to progress through the career structure;

• the NTEU’s proposed variation to the classification of academic staff clause was intended to eliminate a “small problem” 43; and

• he was not aware of any disputes that had been brought to the Commission regarding the issues which the NTEU’s proposed variation to the classification of academic staff clause sought to address.

Dr Robyn May 44(Expert Witness)

[36] In her witness statement Dr May focused on the NTEU’s claim for a discipline currency payment, with her evidence based on her PhD research and her experience working in casual academic teaching roles since 2006. Dr May was put forward by the NTEU as an expert other than in respect of her evidence regarding her personal experience. Among other things, Dr May deposed that:

• a majority or around half of teaching contact hours were worked by casual employees;

• most casuals were engaged in core ongoing functions, adding that most casual academic engagements involved a specific commitment to specified hours of teaching work at specified times typically over a semester or sometimes a whole year;

• the unusual feature of most academic casual employment was that payment was not made for the hours actually worked, adding that the industrial parties had accepted that this approach was appropriate for this work;

• it was inherent in the nature of this academic work that casual academic employees be aware of significant employer policies which affected their work and maintained adequately up-to-date knowledge of the academic discipline or disciplines relevant to their teaching;

• full-time academic staff were paid for such work;

• the amount of time which might realistically be required to establish a knowledge of and familiarisation with university policies upon initial appointment varied from workplace to workplace but would rarely be less than 10 hours;

• for academic staff not employed to do research, the maintenance of discipline currency must be done by the employee as a distinct and necessary activity;

• it would only be in unusual circumstances that an academic employee engaged only to teach would need to work for less than 40 hours each year to maintain up-to-date knowledge of an academic discipline;

• her PhD research, which included the Work and Careers in Australian Universities Survey, found that

• casual academic staff were younger and more likely to be female than their continuing academic counterparts,

• male and female casual academic staff worked fairly similar hours per week, and

• females were more likely than males to have multiple employers, work mostly as tutors, and depend on the casual employment as their main source of income; and

• over the time she had taught on a casual basis her observation was that the incidental work associated with teaching, such as the requirement to read and understand university policies and procedures, had grown considerably.

[37] Key aspects of Dr May’s oral evidence were that: 45

• since she completed her PhD she no longer worked as an academic and therefore appeared in these proceedings in a personal capacity;

• section 3 of her witness statement reflected a series of statements put to her by the NTEU to which she attested;

• with regard to MFI#1 46, she acknowledged that section 3 of her witness statement which dealt with the claim for a discipline currency payment was almost identical to that section of Honorary Associate Professor Junor’s witness statement which dealt with the same issue;

• despite the similarities between section 4 of her witness statement (which referred to the Work and Careers in Australian Universities Survey) and Dr Strachan’s witness statement regarding the Survey, the analysis of the Survey in relation to casual academic staff was her research with Dr Strachan’s research involving the analysis and development of the Survey for general and academic staff;

• her evidence about the amount of time which might realistically be required to establish a knowledge of and familiarisation with university policies upon initial appointment was one of the propositions put to her by the NTEU and was not the subject of empirical research in the study which she undertook; and

• with regard to the case studies referred to in section 4 of her witness statement, she did not do any monitoring of the time that staff actually spent reading policies, adding that she was not aware of any study that had undertaken that exercise.

Dr Jochen Schroeder 47

[38] Dr Schroeder was a full-time Senior Lecturer in the School of Engineering at RMIT University (RMIT) and prior to that was employed as a post-doctoral fellow, Research Associate (Level A) at The University of Sydney (UoS). In his witness statement Dr Schroeder deposed inter alia that:

• his normal working weeks as a researcher at UoS were between 40 and 50 hours, with occasional weeks either much longer or a little shorter than that;

• his teaching load at RMIT was a notional 15 hours per week, adding that preparation time was not included in that 15 hours per week;

• in the first semester of 2015 he was regularly working a 70 hour week, mostly just keeping up with teaching and associated duties but also modernising the content of the unit he was teaching;

• in the 2015 mid-year break he spent 80 hours just working on various administrative tasks associated with assessment collection and collation for final year projects;

• in the second semester of 2015 he estimated that his average hours of work were around or more than 50 hours per week, adding that the reduction when compared to the first semester was in large part because he decided not to update and modernise the course materials in the unit he was teaching and simply not take as much time in preparation of the teaching content;

• he was fairly confident that his much lower student evaluation scores were as a result of his decisions in that regard;

• he felt that as a teaching and research academic he was unable to perform adequate research or even keep up with developments in his field;

• the issue of high workloads had been discussed and raised in various staff meetings prior to the middle of 2015, adding that he had been provided with a casual head tutor to assist him;

• there was no separate accounting for marking in his school’s workload model;

• the causes of his workload problems were in part a result of a lack of resources as well as bad organisation and poor administrative support, highlighting in particular a very high student to staff ratio;

• he estimated that he needed to spend between 20 and 30 hours each year to keep up with university policies and changes to them and developments in his discipline; and

• most of the discipline specific reading he did was part of his research, adding that if he were only employed to teach that he would have to read a lot more to keep up with his academic discipline.

[39] Key aspects of Dr Schroeder’s oral evidence were that 48:

• he had resigned from his position at RMIT to take up an academic position in Sweden, adding that the main reason for doing so was that he considered his workload to be “killing” his research career and affecting his mental and social wellbeing;

• part of the reason he worked long hours in 2015 was that he was at that time new to the role of a teaching and research academic, though he later added that having to coordinate the course was another factor; and

• in early 2016 he met with Professor Mouritz, Executive Dean of the School of Engineering at RMIT, to discuss academic workload, agreeing that his requests for help to alleviate his workload for that year were agreed to by Professor Mouritz.

Steven Adams 49

[40] Mr Adams is employed by the University of Melbourne (UM) as a Senior Technical Officer in the School of Engineering and has worked in that area for 30 years. Mr Adams’ ordinary hours of work are 8.45 am to 5.00 pm Monday to Friday, with his work during teaching semesters revolving around the teaching timetable. In his witness statement Mr Adams cited two days as examples of his busy schedule, i.e. 27 April and 4 May 2015. Beyond that, Mr Adams deposed among other things that:

• he could not complete his required tasks without working outside his ordinary hours of work, adding that this was because the central timetabling unit now scheduled laboratory classes at any time between 8.15 am to 6.15 pm throughout the semester;

• he was eligible for TOIL that had not taken even half of the time owed to him;

• for the last 10 years or so the nature of his work required him to perform an average of 5 to 10 extra hours work per week during semester;

• neither UM nor the School of Engineering had a process in place for recording extra time worked;

• for unpaid overtime UM informed staff to make local arrangements with their line manager;

• he estimated that 90 per cent of his team’s overtime was not to work on specific projects but was required in order to complete their workload and meet student needs;

• he had never been directed not to perform uncompensated overtime;

• in addition to providing technical work for laboratories he also undertook cleaning maintenance, procurement, administrative duties, attended School meetings and also had a number of final year student projects to support;

• he and other technical staff were constantly talking to his manager about workload and the need for more staff; and

• peak workloads were during semester.

[41] Key aspects of Mr Adams’ oral evidence were that: 50

• practical classes normally commenced in the second week of each semester and that to the extent that there was an intense period it was effectively a 4-6 week block within a semester, with a quieter period towards the end of the semester;

• with regard to those aspects of his witness statement where he deposed that he worked additional hours without accessing TOIL, he agreed that those aspects went to the issue of clause 57.5 of the University of Melbourne Enterprise Agreement 2013 51(UM Agreement) being properly applied and the staff member documenting their hours of work;

• he did not record his additional hours of work as he was required to put his timetable on his Outlook calendar which was accessible to his supervisor, later agreeing that his supervisor would not be able to determine from his calendar how many hours he worked, when he took his lunch break or if he had not taken a lunch break;

• he was not inferring in his witness statement that he was denied TOIL but rather that he did not access or use it;

• where it had been suggested that a casual employee come to either perform his role or that of one of his team members there had been resistance to the proposal because it entailed a perceived dumbing down of their roles; and

• none of his managers or supervisors had ever issued him a direction to record his TOIL.

Honorary Associate Professor Anne Junor 52(Expert Witness)

[42] Associate Professor Junor is a senior Visiting Fellow and Deputy Director in the Industrial Relations Research Centre in the University of New South Wales (UNSW) Business School at UNSW. Associate Professor Junor’s statement comprised four sections – ‘My Personal Experience’; ‘The Claim for a Discipline Currency Payment’; ‘My Own Empirical Research’ and ‘Expert Report’ (comprised of two components – Personal Details and Literature Review). Key aspects of each section of her statement are summarised below.

My Personal Experience

• Following orientation academic casuals needed support and paid time for ongoing professional learning in order to navigate, access and make effective professional use of a range of resources such as web-based learning and communication modalities and classroom teaching technology, and to acquire and exercise capabilities, specific to cultures, learning styles and developmental levels, for interpreting, mediating and assessing the understanding and application of course content.

• Over the period 1995 to 2009 she was responsible for recruiting academic casual tutors and ensuring that they had a strong up to date disciplinary knowledge, highlighting two instances (described as exceptions) where issues arose regarding the performance of sessional tutors.

The Claim for a Discipline Currency Payment

[43] Based on her academic research and her own experience in casual academic teaching roles and supervising casual sessional staff, Associate Professor Junor expressed a number of views including that:

• casual employees played a central role in teaching and a key role in student assessment, particularly at undergraduate level, in Australian universities;

• most casual academics were engaged in core ongoing functions;

• many casual academics were in fact career academics or at least expected to be employed for a number of years;

• the unusual feature of most academic casual employment was that, in respect of the majority of work (i.e. lecturing and tutoring), payment was not made for the hours actually worked;

• the obligations to be aware of university policies and to maintain discipline currency applied to all long-term employees, whether full-time or casual;

• for academic staff not employed to do research, the maintenance of discipline currency had to be done by the employee as a distinct and necessary activity, adding that it would only be in unusual circumstances that an academic employee engaged only to teach would need to work for less than 40 hours per year to maintain up-to-date knowledge of an academic discipline.

My Own Empirical Research

[44] This section of Associate Professor Junor’s report covered two aspects of her research into casual academic work, with some of the key findings set out beneath each:

1. a survey of casual academics conducted over the period 2001 to early 2003 with the findings published in 2004 and 2005

• casual academics were on the whole less qualified than non-casual academics, reflecting the fact that some groups were all enrolled in higher degrees whilst teaching,

• approximately 20 per cent of casual academics had been working in this way at their current university for over six years and 40 per cent for more than three years, and

• apart from economic insecurity, casual academics in the 2001-2003 survey reported experiences of marginality in their organisation which it could be inferred, affected their sense of empowerment in seeking resources or advice in maintaining discipline currency; and

2. coding analysis done in 2008 on data generated by a 2007 NTEU Survey, focusing on the 2012 publication of a selection of qualitative findings found among other things that

• without countervailing measures, the 2012 onset of the demand driven funding model was likely to increase insecurity, because it would increase the requirement for just in time flexible staffing.

Expert Report

[45] The literature review included in Associate Professor Junor’s report dealt covered issues such as the professional dimensions of casual academic work, the special characteristics of casual academic work and the sustainability of developing the next generation of professionals on current university practices in managing the teaching workforce. Key points made in respect of the latter issue were that:

• failure to guarantee resources for disciplinary currency maintenance posed a threat to the sustainability of academic and professional quality standards. It would therefore appear necessary to mandate sessional university teachers’ entitlement to a minimum standard of paid disciplinary and pedagogical currency maintenance; and

• academic casuals were not at present paid for the maintenance of discipline currency or knowledge of pedagogy, of teaching and assessment technologies and methods, of university policies and procedures, or of professional obligations. That this lack of professional development characterised the dominant form of university teaching work was of concern.

[46] Key aspects of Associate Professor Junor’s oral evidence were that: 53

• sections 3 and 4 of her report constituted her responses to the specific statements in section 2 of her report;

• section 2 of her witness statement included propositions put to her by the NTEU which she agreed with based on her research and experience;

• her report did not include the propositions she was asked to respond to by the NTEU;

• while she was not aware that section 2 of her export report was in virtually identical terms to part of the export report submitted by Dr May in these proceedings, she was not surprised as she was aware that various witnesses would be addressing the same set of issues;

• she was not aware of any published quantitative research on the time spent by casual academics reading policies;

• she engaged both individuals referred to in the examples referred to in section 1 of her witness statement after looking at their CVs and speaking to them and having regard to the qualifications, experience and what they were going to teach or tutor;

• that aspect of section 3 of her report dealing with coding analysis on data generated by a 2007 NTEU survey entailed her looking at the responses to open-ended questions put as part of the survey and grouping them thematically into the seven types identified in section 3 of her report;

• some similarity was identified in those responses when compared to the responses provided in the 2001-2003 survey;

• the 2001-2003 survey was a survey of the complete population of casual academics at five universities (a sample of approximately 10,000 employees) with a response rate of 29.1 per cent;

• section 3 of her report was a subset of a paper titled “Casual University Work Choice Risk In equity and the Case for Regulation” which she had previously produced regarding the 2001-2003 survey;

• with regard to Table 2 in section 3 of her report, ignoring the final two categories and qualified academic jobseekers and cross sectoral non-casual education workers meant that in the order of 45 per cent of survey respondents (comprised of academic apprentices, industry professional apprentices and outside industry experts) would through their PhD studies and outside industry experience be engaged in reviewing and reading articles;

• with regard to Table 6 in section 3 of her report, earnings such as PhD stipends or scholarships and earnings from other employment were not taken into account;

• the literature review at section 4 of her report provided a conceptual basis for making the argument that it was necessary to provide a discipline currency allowance to ensure professional quality of casual academic teaching and standards of work in universities, disagreeing that the literature review was in the form of an argument or a submission to support the NTEU’s claim in this regard; and

• the concept of being current in your discipline also applied to other professions and professionals such as teachers, information technology professionals, human resources professionals, other health workers, psychologists and early childhood education providers.

Professor Phil Andrews 54

[47] Professor Andrews is a Professor in the School of Chemistry in the Faculty of Science at Monash University (Monash) and is also Deputy Head of the School of Chemistry. Professor Andrews provided three witness statements in which he deposed inter alia that:

• at Monash academic work was categorised under the general headings of teaching, research administration and service;

• the duties which fell within each of these categories was open to argument, highlighting that in science, medicine and engineering at Monash most of the work arising from supervision of higher degree research students was counted as part of an academic’s research workload allocation despite much of that work being administrative in nature;

• the fact that this work was counted as research ate away the amount of time a supervising academic had available to do actual research;

• in his School the allocation of teaching hours was fairly transparent and collegial;

• workload pressures in the School of Chemistry at Monash had increased significantly in the past five years due to a number of factors including a large increase in student numbers, a reduction in teaching and research academic staff, and growing and changing pressures to generate research output;

• due to the pressures created by the growth in student numbers, research only staff were increasingly being asked to take on core teaching functions;

• academic staff were now required to meet minimum research performance expectations and in practice were expected to exceed those minima, adding that Monash’s Performance Standard Indicators set both minimum and aspirational targets;

• junior academics, who in many schools were loaded up with heavy teaching loads, had little option but to do research in their own time if they wanted to have any chance of promotion;

• student satisfaction and employability requirements had placed new pressures on academic staff, observing that in the past academics did not have to make students happy but rather just teach them;

• higher degree supervision was an area that was chronically undercounted in Monash’s workload model;

• in addition to conducting their own research, academic staff were expected to maintain broad knowledge of developments in their disciplines, estimating that he spent approximately 20 hours during semester breaks and 2 to 3 hours a week during teaching periods keeping up-to-date with developments;

• other academics with lower administrative loads were expected to spend much more time in this work;

• it was difficult to draw a line and say “you must stop working now” 55 when someone was pursuing research they had a passion for;

• workload allocations and performance expectations had grown to the point where they crowded out time to do the things that academics were really interested in;

• the internal motivations of the majority of academic staff ensured that they worked very long hours to get their required work done in order to then find time to do the creative work that they valued;

• he worked approximately 50 hours a week on completing his allocated duties and meeting the written and implicit performance expectations of Monash, adding that there was no part of the year when he worked a 38 or 40 hour week;

• students sent emails to academic staff in the evenings and on weekends and expected an instant response;

• in the absence of a direct instruction not to respond to emails out of hours and in circumstances where no such instruction had ever been issued, academic staff were guided by the requirement to achieve high levels of student satisfaction;

• the balance between work required to meet his employer’s expectations and the work he did out of personal choice had shifted significantly such that there was very little time left to do creative work;

• while he would prefer to work fewer hours, if he did not keep on top of things work pressures would spiral out of control;

• he was not aware of any efforts by Monash to either reduce the amount of time worked by academic staff or to ameliorate the impact of long working hours;

• he had never been instructed not to work during lunch breaks or to refrain from working out of hours, adding that he valued the fact that he had professional control over how, when and where much of his work was performed and that without such control the sheer volume of work would not be manageable;

• a lot of academic work was not named or counted in Monash’s approach to workload management;

• he observed that laboratory and technical staff were also working longer hours;

• he received no assistance from Monash for any of the expenses associated with purchasing and maintaining his own ICT equipment or connections; and

• academic staff were expected to put in whatever hours were necessary to get their work done, adding that it was not uncommon for employees to perform substantial work during their annual leave in order to meet required performance standards especially in relation to research.

[48] Key aspects of Professor Andrews’ oral evidence were that: 56

• with regard to the Annual Minimum and Aspirational Research Targets 2016 for Teaching and Research Staff in the School of Chemistry 57, he was significantly exceeding the aspirational quantitative research performance expectations;

• the failure by an academic staff member to meet one or more of those targets did not mean that he or she would be dismissed;

• the introduction of minimum performance standards was an attempt by Monash to try and quantify what it expected of its academic employees in terms of the research outputs, adding that a lot of people but not everybody would view the research standards as not particularly onerous;

• if he were to just achieve the minimum performance standards outlined for someone at his classification level, he could probably work 40 hours a week but he would have to have a number of PhD students to run the projects to do research work and he would have to have funding available to run those projects;

• in respect of that aspect of his first witness statement setting out his experience as part of the NTEU enterprise bargaining team for Monash in respect of academic workloads 58, there was never a claim to include a clause that would see academic hours of work set and recorded by the employer or for an overtime loading or for a provision that required a distinction to be drawn between self-directed work and that pursued over and above what Monash required;

• there had never in his knowledge been an attempt to say to academics that you cannot conduct certain numbers of hours of research, adding that there had also never been an attempt to regulate academic research work within residual annual allocated hours once the hours allocated to teaching and administration had been set;

• the object in the last round of enterprise bargaining at Monash was to try and protect the research time that academics had;

• most academics would not accept a directive to limit their research time;

• Monash enabled staff to salary package information technology equipment, adding that he had salary packaged a laptop computer; and

• he claimed the cost of his home internet connection and the like back on tax.

Karen Ford 59

[49] Ms Ford is the Executive Assistant to the Director and Administration Officer for the Centre of Medical Radiation Physics in the School of Physics, Faculty of Engineering and Information Sciences at the University of Wollongong (UW). Ms Ford has been in this role for seven years, with the role involving providing administrative support to the Research Group, including diary and email management for the Director, timetabling and preparation of the three subjects that the Director and one other teaching/research academic at the Centre taught.

[50] In her witness statement, Ms Ford deposed that:

• she was responsible for all administration activities and did not have a team to fall back on;

• when she was absent on leave her work did not get done, meaning that she returned to a huge backlog of work;

• since commencing at UW almost 10 years ago she had worked on a Flexible Working Hours Arrangement which saw hours worked in excess of seven hours per day or 35 hours per week accrue towards time off as opposed to being paid as overtime;

• she averaged two extra hours of work per day and found it very difficult to take time off;

• UW’s Flexible Working Hours Arrangement policy only allowed a staff member to accrue 10 hours at any time with anything beyond that forfeited;

• in 2015 she lost 20 days of flexitime as she was unable to carry more than 10 hours of the accumulated time into the next timekeeping period;

• she would much prefer to be paid overtime for extra hours worked;

• her supervisor did not encourage her to take her accrued hours; and

• her supervisor would often email her at night and on weekends such that by Sunday night she would have 20 new action items in her email inbox, with her supervisor expecting her to action those early on a Monday.

[51] In her oral evidence Ms Ford attested inter alia that: 60

• it was possible to be paid overtime under a Flexible Working Hours Arrangement;

• she took 16 flex days during 2015;

• she could in accordance with UW’s policy called My Time Keeping 61 book a flex day up to 3 months in advance, thereby giving herself a greater flex time carryover, later adding that at the start of 2015 she did not understand that she could in advance book in six days as flex leave and this would carryover the correct amount of hours worked and that she could not recall when she became aware that this could be done;

• she had never asked for a casual to cover her while she was on leave;

• with regards to the emails that her supervisor sent her over the weekend, he did not expect her to work over the weekend to action those emails;

• there was a process for seeking approval (either verbal or written) and claiming overtime at the UW, and that she recalled putting in for overtime twice without overtime being approved; and

• since becoming aware of the ability to book flex days up to 3 months in advance she had forfeited accrued flex hours as it was not easy to try and juggle the six flex days she could take during that period, adding that she was unable to pinpoint how many hours she had forfeited since becoming aware of the scope to do so.

Clark Holloway 62

[52] Mr Holloway was employed by UW as a Business Analyst in the Project Management Office of the Information Management and Technology Services Division. Mr Holloway resigned from his employment with UW with effect from 6 May 2016.

[53] In his first witness statement, Mr Holloway deposed that general staff employees at UW were required to record their working hours in an online form, adding that the system used by UW since 2012 had several inbuilt features which operated to limit the extent to which actual working hours could be recorded. Mr Holloway listed those features as including not allowing a carryover of more than 10 hours of accumulated flexitime in any fortnight unless time had already been booked and entered into the system to be taken off in the next fortnight and an inability to enter weekend hours of work or additional approved hours for overtime.

[54] Mr Holloway further deposed that staff in the Information Management and Technology Services Division often worked long hours and were required to perform duties on weekend and that several years ago his supervisor agreed to his request to stop using UW’s timekeeping system as a result of the above features. In his supplementary witness statement, Mr Holloway disputed a number of aspects of Ms Thomas’s witness statement (an AHEIA witness) and deposed among other things that in his work area the flexitime system operated and overtime was not paid for long hours or weekend work.

[55] In his oral evidence, Mr Holloway attested that he had never attempted to claim overtime and had never seen UW’s Overtime Related Expenses Claim Form, later adding that he had never been advised by a supervisor or anyone else to claim overtime 63. Other key aspects of Mr Holloway’s oral evidence were that:64

• he did not formally take up with UW, in his capacity as President of the NTEU’s UW Branch, his concerns that UW’s timekeeping policy was contrary to workplace law and entitlements; and

• given his view of the inadequacies of UW’s flexitime recording system, he approached his manager and put place an arrangement that enabled him to capture the time he actually worked.

Andrea Brown 65

[56] Ms Brown has been employed at UM as a Safer Community Program Coordinator since 1 May 2016. Ms Brown’s evidence related almost exclusively to her employment at Victoria University (VU) over the period 1995 to 2014, where she was initially classified as a higher education worker (HEW) Level 6 and from 2000 as a HEW Level 8 employee. Ms Brown had also held a number of NTEU positions/roles.

[57] Ms Brown deposed in her witness statement inter alia that:

• as a HEW Level 6 employee her workload required her to work well beyond the 36.75 hour week prescribed by the applicable enterprise agreement, adding that she recalled working on average between 40-42 hours per week and from time to time working on a Saturday and Sunday to ensure a particular piece of work was finished on time;

• during this time she consistently accrued a substantial amount of TOIL which she would draw down instead of taking annual leave and during periods of university shutdown;

• as a HEW Level 8 employee she was entitled to TOIL but not paid overtime as compensation for additional hours worked and that there needed to be prior approval to accrue TOIL;

• for her, in the vast majority of cases seeking prior approval to accrue TOIL just did not happen;

• her workload as a HEW Level 8 employee was not manageable within ordinary hours of work and she recalled working up to a 45 hour week on a regular basis;

• she had no power or authority to influence the demands or workload of her role as a HEW Level 8 employee but was responsible for getting her work done;

• approval to accrue TOIL was never provided, with her manager insisting on prior approval to work additional hours and accrue TOIL on that basis;

• from 2005 onwards and particularly during 2011-2014, VU underwent successive periods of major organisational change with general staff heavily impacted and reduced by over 400 positions;

• her experience was that while general staff numbers reduced substantially, the type and volume of work did not change;

• except for the period 2009 to 2014 when she was provided a mobile phone by her employer, she had always provided and paid for ICT to effectively work from home;

• she had purchased her own modem, laptop computer, broadband access and necessary software to enable her to work from home;

• she had always paid the internet service provider costs even though the vast majority of the use of her ICT was for work purposes; and

• university employers had never provided this service nor reimbursed her for the ICT costs she incurred at home.

[58] Key aspects of Ms Brown’s oral evidence were that: 66

• over the period 2010 to 2014, she recalled team meetings where her then supervisor enabled staff to discuss workload and hours of work and that she also had individual meetings with her then supervisor;

• following her return from parental leave in 2010 she had an arrangement where she took a day of annual leave each week, with that arrangement continuing until 2014;

• following that she had an arrangement whereby she left the workplace one afternoon each week to pick up her child from school after which she would work from home;

• she could not remember whether the workload review process provided for in clauses 41.7 and 41.8 of the Victoria University Enterprise Agreement 2013 67(VU Agreement) had been invoked while she was at VU, though her sense was that it probably would have been;

• she did not recall a laptop being made available to her for working from home;

• she did claim some of the ICT expenses she incurred as a tax deduction;

• she had entered into various arrangements with VU to provide flexibility to assist her in accommodating her parental responsibilities;

• she had the option to approach her supervisor to discuss TOIL and seek approval, adding that the expectation was that you would not ask or seek approval for TOIL;

• she was sure that in the very early stages of commencing in the role of Equal Employment Opportunity Officer (the role she held from 1999 to 2014) that she would have discussed with her supervisor the need to work additional hours and take TOIL, with the message that was given to herself and other staff being that if you need to work additional hours you need to discuss that with your supervisor prior to working the extra hours if you wish or if you have an expectation that you will subsequently be able to take TOIL for that period;

• she did not discuss the need to work additional hours with her supervisor very often, estimating that the number of occasions that she had been refused approval to take TOIL as four;

• she accepted that she did not recall being told explicitly that she could not raise issues of additional hours and TOIL;

• she was not aware that VU paid millions of dollars in overtime or paid in excess of 1300 hours of TOIL over the period 2013 to 2015;

• VU had not directed her to work from home, adding that the arrangement was by mutual agreement;

• she agreed that whether or not she was working from home she would now have the internet on at home and that she did use the internet for private purposes; and

• as a HEW Level 8 employee she had not been instructed not to work additional hours.

Professor Glenda Strachan 68(Expert Witness)

[59] Professor Strachan is a Professor in the Department of Employment Relations and Human Resources, Griffith Business School at Griffith University in Queensland. Professor Strachan’s evidence centred on the report Work & Careers in Australian Universities: Gender and Employment Equity: Strategies for Advancement in Australian Universities which was the result of a study undertaken as a result of an Australian Research Council(ARC) linkage grant, with Professor Strachan the study’s lead Chief Investigator.

[60] The Work and Careers in Australian Universities Survey was conducted as part of the study, with data collection occurring over the period August 2011 to January 2012. The Survey involved separate survey instruments for three groups of employees – professional/general, academic, and sessional (i.e. casual staff employed in the last pay period prior to the study launch). The overall response rate for the survey was 27 per cent, while the response rate for the different employee groups was 35 per cent for academic staff, 32 per cent for professional/general staff and 12 per cent for sessional staff. The Survey included a number of questions regarding working hours (and workload for academic and sessional staff only), work and family and flexible working arrangements (in respect of professional/general and academic staff only).

[61] Key survey results for each group were as follows:

• Professional/general staff – 56 per cent of full-time employees reported as usually working 35-39 hours per week, while 34 per cent reported as usually working 40-49 hours per week; 56 per cent responded that if they could choose they would prefer to work about the same hours as now, while 35 per cent would prefer fewer hours than now; 39 per cent responded that work sometimes interfered with their responsibilities or activities outside work, while 45 per cent responded that work rarely or never interfered; 39 per cent of respondents considered workloads to be a major or somewhat of an impediment to balancing their work and family life, while 59 per cent of respondents considered workload to either be a minor impediment or not an impediment; 48 per cent of the total sample thought they would prefer a change in their work arrangements.

• Academic staff – 10 per cent of full-time academic staff reported as usually working 35-39 hours per week, while 39 per cent reported as usually working 40-49 hours per week and 51 per cent reported as usually working 50 or more hours per week; 44 per cent responded that if they could choose they would prefer to work about the same hours as now, while 52 per cent would prefer fewer hours than now; 41 per cent responded that work almost always or often interfered with their responsibilities or activities outside work, while 39 per cent responded that work sometimes interfered and 20 per cent responded that work rarely or never interfered; 38 per cent of the total sample thought they would prefer a change in their work arrangements.

• Sessional staff – 22 per cent responded that work almost always or often interfered with their responsibilities or activities outside work, while 40 per cent responded that work sometimes interfered and 37 per cent responded that work rarely or never interfered.

[62] Beyond this, the survey results indicated that 76 per cent of sessional staff identified as having access to a workspace, computer and phone at their university, while 57 per cent identified as having access to a suitable space for student consultation.

[63] Key aspects of Professor Strachan’s oral evidence were that: 69

• in responding to a survey question directed at professional/general employees regarding how they were compensated when they worked more than their weekly hours, 17 per cent responded that they received overtime payments, 12 per cent received TOIL and 67 per cent responded that they received no compensation;

• with regard to her expert evidence, she

• did not know why her report was not signed consistent with the practice note or guidance concerning expert evidence,

• was aware that the report was required to identify the specific questions she was asked to address, adding that if that was not included this was because she was not asked to include that material,

• was not given advice that her report needed to include an acknowledgement that her opinion was based wholly or substantially on her specialised knowledge,

• was instructed by the NTEU to prepare a submission around details from the research that had been conducted,

• acknowledged that the NTEU had put some content to her which was included in the initial report which she filed,

• did not acknowledge in her report that she was member of the NTEU,

• had not discussed her evidence with either Dr May or Dr Junor, and

(b) An HEW 7 or HEW 8 will not be eligible for paid overtime but may take time off instead of overtime payment, at a mutually agreed time, calculated in accordance with the relevant overtime rate.

(c) An HEW 9 or above will not, except as provided in this subclause, be entitled to paid overtime or time off instead of overtime payment. By agreement with the employer, the employee will be provided with time off instead of overtime payment at the rate of one hour for each hour of overtime worked when the employee is specifically required to work additional hours and it would be unreasonable for time off instead of overtime payment not to be provided.”

[356] A number of observations can be made about clause 26 of the General Staff Award. First, TOIL calculated in accordance with the relevant overtime rate is available to HEW 6 and below employees. Second, it is clear that HEW 7 and above employees are not eligible for/entitled to paid overtime, with TOIL the default position for HEW 7 and HEW 8 employees. For HEW 9 and above employees TOIL is subject to agreement, the employee being specifically required to work additional hours and it being unreasonable for it not to be provided. Third, the clause does not contain any of the protections reflected in the TOIL model term. For instance, the current General Staff Award provision does not specify the timeframe with in which TOIL is to be taken, does not provide scope for an employee to request payment at any time despite a written agreement to take TOIL and does not provide for payment for the overtime at the relevant overtime rate in circumstances where TOIL has not been taken upon the termination of an employee’s employment.

[357] The absence of the abovementioned protections are in our view significant deficiencies which warrant the inclusion of the TOIL model term in the General Staff Award. However, the insertion of the model term in the General Staff Award should not disturb the existing approach in respect of HEW 7 and above employees who as noted above are not eligible for/entitled to paid overtime. As such, the TOIL model term as applied to awards which provide that TOIL is to be calculated in accordance with the relevant overtime rate will only apply to HEW 6 and below employees.

[358] With regard to the modern awards objective, we note and respectfully agree with the following views expressed by the Award Flexibility Full Bench in its 6 October 2015 decision:

“[69] Subject to what may be put about the circumstances pertaining to particular modern awards our general view is that the variation of modern awards to incorporate the model term is necessary to ensure that each modern award provides a fair and relevant minimum safety net, taking into account the s.134 considerations (insofar as they are relevant) and would also be consistent with the objects of the Act.

[70] We also accept that flexible working arrangements, such as TOIL, may encourage greater workforce participation, particularly by workers with caring responsibilities. The evidence referred to in the Award Flexibility Decision also supports a general finding that regardless of the industry employees work in, the most important aspect of determining employee satisfaction with their current job is the flexibility to balance work and non-work commitments.

[71] As a general proposition we accept that flexible working arrangements, such as TOIL, may encourage greater workforce participation, particularly by workers with caring responsibilities. The insertion of an appropriate TOIL facilitative provision in modern awards is consistent with the objective of promoting social inclusion through increased workforce participation (see s.134(1)(c)).

[72] Section 134(1)(d) of the modern awards objective requires the Commission to take into account the need to promote flexible modern work practices and the efficient and productive performance of work. We accept the proposition that inserting a TOIL provision into a modern award which provides for overtime but does not presently contain a facilitative provision permitting TOIL, is consistent with the promotion of flexible modern work practices.

[73] Section 134(1)(f) provides that the Commission must also take into account the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden. The insertion of the model term will assist in ensuring that modern awards are relevant to the needs of the modern workplace, and will assist businesses.

[74] Finally, the insertion of the model term into modern awards is also consistent with the objects of the Act by: providing workplace relations laws that are fair to working Australians and are flexible for businesses (s.3(a)); ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the NES and modern awards (s.3(b)); assisting employees to balance their work and family responsibilities by providing for flexible working arrangements (s.3(d)); and acknowledging the special circumstances of small and medium-sized businesses (s.3(g)). In respect of s.3(g), a modern award variation of the type proposed will provide a simple mechanism for all such businesses to provide access to mutually beneficial TOIL arrangements between an employee and their employer.” 378

[359] Against that background, we consider the inclusion of the TOIL model term (amended as outlined above) in the General Staff Award to be consistent with the modern awards objective.

[360] For all the above reasons, we will insert the model term as it relates to awards that time off instead of overtime payment is to be calculated in accordance with the relevant overtime rate in the General Staff Award. The TOIL term will only apply to HEW 6 and below employees.

20. NEXT STEPS

[361] As a first step we propose that Commissioner Johns convene a conference of the parties to establish whether any party wishes to be heard in respect of our provisional view that clause 17.6(a) of the Academic Staff Award should be deleted and, if necessary, consider a proposed timetable for consideration of that issue.

[362] Beyond that, draft Determinations giving effect to the other variations we have decided to make to the Awards will be issued shortly with the parties to be provided an opportunity to comment on those draft Determinations.

VICE PRESIDENT

Appearances:

Ms L. Gale, Mr K. McAlpine and Ms S. Kenna for the National Tertiary Education Industry Union (Ms Gale also appeared for the CPSU, the Community and Public Sector Union).

Mr S. Pill, solicitor for the Group of 8 Universities.

Ms C. Pugsley for the Australian Higher Education Industrial Association.

Mr L. Izzo for Australian Business Industrial and the New South Wales Business Chamber.

Hearing details:

2016.

Melbourne:

July 18, 21, 22, 27–29;

August 29–31;

September 1–2;

October 21;

November 2-3;

December 1.

2017.

Melbourne:

March 29–30.

Printed by authority of the Commonwealth Government Printer

1 MA000006

2 AE407248, Australian Catholic University Staff Enterprise Agreement 2013-2017

3 MA000007

4 [2015] FCA 136

5 AE409776, Macquarie University Academic Staff Enterprise Agreement 2014

6 AE410374, Monash University Enterprise Agreement (Academic and Professional Staff) 2014

7 [2017] FWCFB 1001

8 AE406763, University of Melbourne Enterprise Agreement 2013 (Exhibit MFI#4)

9 AE406321, University of Sydney Enterprise Agreement 2013-2017

10 AE407077, University of Tasmania Staff Agreement 2013-2016

11 AE415561, University of Wollongong (Academic Staff) Enterprise Agreement, 2015

12 AE406376, Victoria University Enterprise Agreement 2013

13 MA000075

14 MA000076

15 MA000006

16 MA000007

17 [2018] FWCFB 797

18 MA000075

19 [2015] FWCFB 8030 at [10] and [11]

20 [2016] FWCFB 2602 at [50](iii)

21 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35] per Tracey J.

22 Friends of Hichinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836.

23 [2014] FWCFB 1788 at [60]

24 Ibid at [24]

25 Ibid at [35]-[36]

26 [2017] FWCFB 1001

27 Ibid at [230]-[264]

28 [2017] FWCFB 1001

29 Ibid at [269]

30 [2017] FCAFC 161

31 AM2014/305, [2017] FWCFB 1001

32 [2017] FCAFC 161

33 [2017] FCAFC 123

34 NTEU submission, 11 March 2016 at page 3

35 NTEU submission, 3 February 2017

36 Transcript, 29 March 2017 at PN35

37 CPSU submission, 3 February 2017

38 Witness statement of Elodie Janvier, 3 June 2016 (Exhibit #E)

39 Witness statement of Anthony Wilkes, 10 March 2016 (Exhibit #F)

40 Witness statement and supplementary Witness statements of Ken McAlpine (Exhibits #G-I)

41 Transcript, 27 July 2016 at PN947

42 Ibid at PN1443

43 Transcript, 28 July 2016 at PN1922

44 Witness statement of Robyn May, undated (Exhibit #L)

45 Transcript, 28 July 2016 at PN2035–2244

46 MFI#1, Document comparing Witness Statement of Anne Junor and Robyn May

47 Witness statement and revised witness statement of Jochen Schroeder, 11 March 2016 (Exhibit #M)

48 Transcript, 28 July 2016 at PN2247–2413

49 Witness statement of Steven Adams, undated (Exhibit #N)

50 Transcript, 28 July 2016 at PN2434–2571

51 AE406763 MFI#4

52 Witness statement of Anne Junor, undated (Exhibit #O)

53 Transcript, 29 July 2016 at PN2585–2875

54 Witness statement, supplementary witness statement and further supplementary witness statement of Phil Andrews, (Exhibits #P-R)

55 Witness statement of Phil Andrews, 11 March 2016 at para 36

56 Transcript, 29 July 2016 at, PN2878–3336

57 Witness statement of Phil Andrews, 18 March 2016 (Exhibit #Q at Attachment PA-2)

58 Witness statement of Phil Andrews, 11 March 2016 at paragraphs 55-57 (Exhibit #P)

59 Witness statement of Karen Ford, 9 March 2016

60 Transcript, 29 August 2016 at PN3410–3572

61 Witness statement of Karen Ford, 9 March 2016 at page 6 of Attachment 3

62 Witness statement and supplementary witness statement of Clark Holloway (Exhibits #W-X)

63 Transcript, 29 August 2016 at PN3630 and PN3704 (MFI#10)

64 Transcript, 29 August 2016 at PN3578–3705

65 Witness statement of Andrea Brown, 7 March 2016 (Exhibit #Y)

66 Transcript, 29 August 2016, at PN3710–3897

67 AE406376, Victoria University Enterprise Agreement 2013

68 Witness statement of Glenda Strachan (Exhibit #Z)

69 Transcript, 30 August 2016 at PN4286–4634

70 Transcript, 30 August 2016 at PN4500

71 Witness statement of Catherine Rytmeister, 9 March 2016 (Exhibit #AA)

72 AE409766, Macquarie University Academic Staff Enterprise Agreement 2014

73 Transcript, 31 August 2016 at PN5004–5111

74 Witness statement and supplementary witness statement of John Kenny (Exhibits #AB-AC)

75 Witness statement of John Kenny, undated at Attachment JK-1, page 30

76 Transcript, 1 September 2016 at PN5680–6187

77 AE407077

78 Witness statement of Michael Hamel-Green, 9 March 2016 (Exhibit #AD)

79 Transcript, 1 September 2016 at PN6202–6312

80 Witness statement of Michael Leach, undated (Exhibit #AE)

81 Witness statement of Michael Leach, undated at para 20

82 Transcript, 1 September 2016 at PN6317–6458

83 Ibid at PN6392

84 Witness statement of Andrew Giles, 8 March 2016 (Exhibit #AG)

85 Transcript, 2 September 2016 at PN6471–6600

86 AE881638, Deakin University Enterprise Agreement 2009-2012 (Exhibit MFI#37)

87 Exhibit MFI#38

88 Transcript, 2 September 2016 at PN6597

89 Witness statement of Caron Dann, 10 March 2016 (Exhibit #AO)

90 Supplementary witness statement of Caron Dann, 11 July 2016 (Exhibit #AP)

91 Transcript, 21 October 2016 at PN8307–8566

92 AE410374, Monash University Enterprise Agreement (Academic and Professional Staff) 2014

93 Witness statement of Andrew Picouleau, 6 June 2016 at Attachment AP-5 (Exhibit #12)

94 Witness statement of Linda Kirkman, 11 March 2016 (Exhibit #AQ)

95 Transcript, 21 October 2016 at PN8570–8627

96 Exhibit #AHEIA12

97 Witness statement of Camille Nurka, 10 August 2016 (Exhibit #AR)

98 Ibid at Attachment CN-2, page 33

99 Transcript, 2 November 2016 at PN8645–8931

100 Witness statement of Graham Hepworth, 26 August 2016 (Exhibit #AS)

101 Transcript, 2 November 2016 at PN9034

102 Ibid at PN8939–9086

103 Ibid at PN9027

104 Ibid at PN9032

105 Witness statement of Michael Dix, 10 August 2016 (Exhibit #AU)

106 Transcript, 3 November 2016 at PN9272–9368

107 Witness statement of Michael Evans, 26 August 2016 (Exhibit #AV)

108 Transcript, 1 December 2016 at PN9576–9680

109 Go8 submission, 3 February 2017

110 Witness statement of Stephen Garton, 6 June 2016 (Exhibit #9)

111 AE406321, University of Sydney Enterprise Agreement 2013-2017

112 Witness statement of Stephen Garton, 6 June 2016 at para 44

113 Ibid at para 45

114 Ibid

115 Transcript, 30 August 2016 at PN4637–4814

116 Ibid at PN4755

117 UoS Code of Conduct (MFI#25)

118 Witness statement of Marnie Hughes-Warrington, 6 June 2016 (Exhibit #10)

119 Transcript, 30 August 2016 at PN4821–5000

120 Witness statement of Simon Biggs, 6 June 2016 (Exhibit #11)

121 Transcript, 31 August 2016 at PN5118–5274

122 AE410824, The University of Queensland Enterprise Agreement 2014-2017

123 MFI#27

124 Witness statement of Andrew Picouleau, 6 June 2016 (Exhibit #12)

125 Ibid at para 25

126 Ibid para 29

127 Ibid at para 36(c)

128 Ibid at para 67

129 Transcript, 2 September 2016 at PN6616–6785

130 Ibid at PN6633

131 Ibid at PN6650

132 Witness statement of Dawn Freshwater, 6 June 2016 (Exhibit #13)

133 Transcript, 2 September 2016 at PN6791–6880

134 AE409546, The University of Western Australia Academic Staff Agreement 2014 (MFI#40)

135 Witness statement of David Ward, 6 June 2016 (Exhibit #20)

136 Transcript, 2 November 2016 at PN9090–9262

137 AE415115, UNSW Australia (Professional Staff) Enterprise Agreement 2015 (Exhibit #21)

138 UNSW Code of Conduct (MFI#45)

139 Witness statement of Mark Wooden, 27 October 2016 (Exhibit #25)

140 Transcript, 1 December 2016 at PN9687–9765

141 AHEIA final submission, 3 February 2017

142 Witness statement of Sue Thomas, 6 June 2016 (Exhibit #AHEIA8)

143 AE415561, University of Wollongong (Academic Staff) Enterprise Agreement, 2015 (MFI#20)

144 Transcript, 29 August 2016 at PN3904–4271

145 MFI#24

146 Witness statement of Andrew Vann, 6 June 2016 (Exhibit #AHEIA9)

147 Transcript, 31 August 2017 at PN527–5587

148 AE404834, Charles Sturt University Enterprise Agreement 2013—2016 (#MFI29)

149 MFI#30

150 Witness statement of Owen Coaldrake, 9 June 2016 (Exhibit AHEIA10)

151 AE409056, Queensland University of Technology Enterprise Agreement (Academic Staff) 2014 - 2017

152 Transcript, 31 August 2017 at PN5593–5654

153 Witness statement of Marie Herberstein, 3 June 2016 (Exhibit #AHEIA11)

154 Witness statement of Marie Herberstein, 3 June 2016 at para 19

155 Transcript, 2 September 2016 at PN6886–6926

156 Witness statement of Diana Chegwidden, 18 March 2016 (Exhibit #AHEIA14)

157 Transcript, 3 November 2016 at PN9374–9538

158 AHEIA submission, 15 April 2016

159 AHEIA submission, 3 February 2017 at para 3

160 Ibid

161 AHEIA submission, 18 March 2016 at para 11

162 Go8 submission, 21 October 2015 at para 6

163 NTEU submission, 8 March 2017 at 5.11

164 Ibid at 5.5–5.10

165 Transcript, 3 November 2016 at PN9391-9400

166 Ibid at PN9431

167 Ibid at PN9403

168 Ibid at PN9526

169 AHEIA submission, 18 March 2016 at para 11

170 Ibid

171 Ibid at para 12

172 Go8 submission, 2 March 2015 at para 1

173 Ibid

174 AHEIA submission, 18 March 2016 at para 13; AHEIA submission, 3 February 2017 at paras 10–13

175 NTEU submission, 8 March 2017 at 4.1

176 Ibid at 4.5

177 Ibid at 4.7

178 Ibid at 4.9

179 Print Q0702

180 Go8 submission, 1 August 2008 2008 at para 158

181 AHEIA submission, 1 August 2008 at para 37

182 [2008] AIRCFB 1000

183 AHEIA final submission, 3 February 2017 at para 14

187 AP801516

188 AHEIA submission, 18 March 2016 at p 16–18

189 Go8 submisison, 2 October 2015 at p 3

190 Go8 submission, 3 February 2017 at p 3

191 Transcript, 30 March 2017 at PN599

192 Transcript, 30 March 2017 at PN580

193 Transcript, 30 March 2017 at PN649

194 NTEU submission, 3 February 2017 at Part K

195 Go8 submisison, 8 March 2017 at p 695

196 AHEIA submission, 6 June 2016 at p 151

197 Print H6821

198 Ibid

199 Print J0176

200 A467

201 A466

202 Prints J0200 and J0207 respectively

203 U0107 – see Print M6477

204 Print R5512

205 Print Q8819

206 Print S2963

207 [2008] AIRCFB 1000

208 [2015] FCA 136

209 [2015] FWCFB 2192

210 AE888776, Centennial Northern Mining Services Enterprise Agreement 2011

211 NTEU submission, 3 February 2017

212 Ibid at p 151-152

213 Ibid at p 150

214 Ibid at p 152

215 Ibid

216 Ibid at p 155

217 Ibid at p 156

218 Ibid at p 153

219 Ibid at p 154

220 Go8 submission in reply, 8 March 2017 at p 181

221 Ibid at p 183

222 Ibid

223 Ibid

224 Ibid

225 Ibid at p 185

226 Ibid at p 188

227 Ibid at pp 191-192

228 Ibid at p 187

229 Ibid at p 189

230 AHEIA submission in reply, 8 March 2017, p 24

231 Transcript, 3 November 2016 at PN9365

232 NTEU submission, 3 February 2017 at p 69

233 Ibid at p 70

234 Ibid at p 72

235 Ibid at p 73

236 Ibid at p 73

237 Ibid at p 73

238 Ibid at p 73

239 MFI#25

240 Transcript, 30 August 2016 at PN4770; NTEU submission, 3 February 2017 at p 81

241 NTEU submission, 3 February 2017 at p 82

242 Ibid at p 83

243 Ibid at p 83

244 Ibid at p 85

245 Print T4991

246 NTEU submission, 3 February 2017 at p 86

247 Ibid at p 93

248 Ibid at p 97

249 Ibid at p 98

250 Transcript, 29 March 2017

251 Go8 submission in reply, 8 March 2017 at pp 110-111

252 Go8 submission in reply, 8 March 2017 2017

253 AHEIA submission in reply, 8 March 2017

254 Transcript, 21 October 2016 at PN8606

255 Expert report of Dr Robyn May

256 Expert report of Honorary Associate Professor Anne Junor

257 Transcript, 28 July 2016, at PN2121–2124

258 NTEU submission, 3 Feb 2017 at p 100

259 Ibid at p 101

260 Ibid at p 102

261 Ibid

262 Ibid

263 Ibid at p 103

264 Ibid

265 Ibid at p 104

266 Ibid

267 Ibid at p 105

268 Transcript, 29 March 2017 at PN232

269 Ibid

270 Go8 submission in reply, 8 March 2017 at p 154

271 Ibid

272 Ibid at pp 155-157

273 Ibid at pp 157 and 159

274 AHEIA submission in reply, 8 March 2017 at p 35

275 Ibid at p 39

276 Ibid

277 PR910932

278 AHEIA submission in reply, 8 March 2017 at pp 41-42

279 Transcript, 30 March 2017, at PN604

280 PR910932 at [10]

281 Transcript, 28 July 2016, at PN1922

282 Ibid

283 MA000006

284 NTEU submission, 3 Feb 2017 at pp 49-58

285 Ibid at p 7

286 Ibid p 8

287 Ibid

288 Ibid at p 9

289 Ibid at pp 9-10

290 Ibid at p 11

291 Ibid at pp 15-44

292 Transcript, 29 March 2017 at PN52

293 Ibid at PN127

294 Ibid at PN135

295 Ibid at PN62

296 NTEU submission, 3 Feb 2017 at p 63

297 NTEU submission, 3 Feb 2017 at pp 63-64

298 Go8 submission in reply, 8 March 2017 at p 44

299 Ibid at pp 44-46

300 Ibid at pp 46-47

301 Transcript, 29 March 2017 at PN484

302 Ibid at PN485

303 Go8 submission in reply, 8 March 2017 at pp 44-46

304 AHEIA submission in reply, 8 March 2017 at p 5

305 Ibid at p 6

306 Ibid at p 6

307 Ibid at p 19

308 Ibid at p 7

309 Ibid at p 23

310 Ibid at p 4

311 Ibid at p 23

312 Transcript, 29 March 2017 PN603

313 Expert report of Professor Glenda Strachan; Transcript, 30 August 2016 at PN4286-4634

314 Expert report of Associate Professor Graham Hepworth, 26 August 2016

315 Witness Statement of Dr John Kenny at p 15; Transcript, 1 September 2016 at PN5970–6187

316 Transcript, 30 August 2016 at PN4494

317 Transcript, 2 November 2016, at PN9067–PN9082

318 Go8 submission in reply, 8 March 2017 at p 36

319 Transcript, 1 September 2016 at PN5980

320 Transcript, 1 September 2016 at PN5983

321 Witness statement of Professor Mark Peter Wooden, 21 October 2016 at p 7

322 Witness statement of Dr Jochen Schroeder, 11 March 2016 at para 29

323 Witness statement of Andrew Picouleau, 6 June 2016 at para 23

324 NTEU submission, 3 February 2017 at Part F

325 Exposure draft, General Staff Award 18 December 2015

326 Go8 submission, 8 March 2017 at para 633

327 The Higher Education General Staff Salaries and Classifications Award 2002 (AP815928) and the Higher Education Workers Victoria Award 2005 (AP844616)

328 Go8 submisison, 6 June 2016 at para 186

329 Go8 submission, 8 March 2017 at para 633

330 NTEU submission, 11 March 2016 at Part F

331 s.284 of the Act

332 Go8 submission, 8 March 2017 at para 633

333 PR911627

334 Ibid at [9]

335 PR917810

336 NTEU submission, 11 March 2016 at Part E

337 Transcript, 29 March 2017 at PN268–275

338 Ibid at PN284–287

339 Go8 submission, 8 March 2017 at para 569

340 Transcript, 30 March 2017 at PN548

341 AHEIA submission, 8 March 2017 at par 128

342 Ibid at par 148

343 NTEU submission, 11 March 2016 at Part D

344 Go8 submission, 8 March 2017 at para 559

345 AHEIA submission, 8 March 2017 at para 116–117

346 ABI submission, 29 June 2016 at 4.21–4.27

347 [2017] FWCFB 3541

348 Ibid at [381]

349 Ibid at [902]

350 [2015] FWCFB 3406

351 [2015] FWCFB 5771

352 [2015] FWCFB 8030 at [10] and [11]

353 [2015] FWCFB 5771 at [172]

354 [2016] FWCFB 3177 at [59] – [78] and [302]

355 [2016] FWCFB 3953

356 Ibid at [37] and Attachment C

357 [2015] FWCFB 5771 at [148]

358 [2016] FWCFB 3177 at [83]–[88]

359 [2016] FWCFB 3953 at [41]

360 Schedule of determinations, 29 July 2016

361 Go8 submission, 26 October 2015 at para 17

362 AHEIA submission, 13 July 2015, (refiled 26 October 2015)

363 Transcript, 30 March 2017 at PN606

364 NTEU submission, 8 September 2015

365 [2015] FWCFB 3406

366 AHEI submission 13 July 2015 at paras 6-9, 11; NTEU submission, 8 September 2015 at paras 3-6, 12; Go8 submission, 27 October 2015 at paras 3-4. 11-12, 16-17

367 [2015] FWCFB 5771

368 PR597971

369 [2016] FWCFB 2602 at [50]

370 [2016] FWCFB 4258 at Attachment C

371 [2016] FWCFB 7737 at Attachment B and C

372 NTEU submission, 24 March 2017 at paras 14.2-14.5; NTEU submission in reply, 30 November 2015 at paras 8-21

373 NTEU submission in reply, 30 November 2015 at para 4; NTEU submission, 24 March 2017 at paras 14.2-14.5

374 Go8 submission, 11 November 2015

375 Go8 submission, 6 June 2016. For the draft determination, see attachment 6 the submission which comprises the party’s submission of 11 November 2015 including draft determination

376 MFI#51

377 AHEIA submission, 6 June 2016

378 [2015] FWCFB 6847

4 yearly review of modern awards—Education group