By JIM HACKETT
On March 26 2021 the FWA was amended to mandate that casuals who meet two criteria (below) must be offered permanent jobs (which they need not accept).
The first criterion is: “(A)n employer must make an offer to a casual employee if … the employee has been employed … for a period of twelve months.”
Imagine Sandra (PhD) is employed as a (teaching) casual by University (U) X from March 26 2020 to March 26 2021. From March 26 2020 to about June 21 2020 Sandra completed her semester one work (including marking). From about July 26 2020, Sandra worked all of semester two, to about November 21 2020 (including marking). From about February 22 to March 26 2021, she completed some semester one work. She observes: ‘This does not look like “employment fo 12 months”. It is three “bits” of three, four, and one months’.
Help is on the way. The FWA says: “(An) offer (of permanent part-time employment must be made to)… an employee (who) has worked less than … full‑time hours during the (12 months) consistent with the regular pattern of hours worked’.”
Sandra meets criterion one. Her offer must cover two semesters of work (three+four+one=eight months).
The second criterion is: “(D)uring at least the last six…of (the twelve months), the employee has worked a regular pattern of hours which, without significant adjustment, the employee could continue.” Thus, if a 2021 Semester One lecture ran from 09.00 to 11.00 on Mondays in 2021, but is to run on Tuesdays from noon to 14.00 in 2022, and Sandra can live with that, she is fine.
UX can refuse to offer Sandra anything if they do not need her anymore. They must explain this. Perhaps: “we are eliminating casuals; all teaching will now be done by permanent staff”. Unlikely? UX has six months from March 26 2021 to get its act together. Sandra must receive her letter by September 27 2021. If it is not there, she can request it from UX; she has a legal recourse if UX remains silent.
Money? Sandra must come within the ambit of the Enterprise Agreement of U X. Below, I refer to the EA of (our local) James Cook University (JCU). Other EAs will not be identical.
Assume that Sandra teaches two courses (20 students each)/semester, each with a weekly two hour lecture and one hour tutorial. The JCU EA allows (a minimum of) three hours for each one hour of such contact. Over the 26 weeks, Sandra amasses 468 hour. Assume further she has 1 hour “consultation time” and 1 hour marking time/student. Total 548 hours A full-time JCU load is 1,638 hours. A permanent part-time “teaching specialist” with Sandra’s teaching load would be entitled to (about) 240 hours (to do non-teaching things). Final total: 788 hours.
The most appropriate job offer is a half-time Teaching Specialist Lecturer B (she has a PhD). With 17 per cent super, Sandra gets over $50,000 p.a., holidays, and pro-rata sick and long service leave. For ever.
Universities will be tempted to invoke something like an “annualised hours” concept. An employee works a defined number of hours per year, when needed, at a pay rate “agreed” between the employee and the university. The JCU EA makes reference to this type of employment; it is not guaranteed to be permanent. UX may not have such a job type. EAs can be changed/replaced. If “annualised hours” were guaranteed to be offered every year and never fall, this meets the FWA mandate. Sandra could be offered 548 hours annually (paid fortnightly) at a rate that makes her no better off. The hours are used in semester one and semester two. She does get paid public holidays and better super. But she loses the casual loading. Exploitation continues with no end in sight. The lectureship path is fair.
What will the NTEU do? If the union insists on fairness, and UX will not agree, and the EA is thus not changed to “permanentise” the “annualised hours” concept by September 27 2021, UX must offer Sandra her half-time lectureship, if the UX EA is like the JCU EA. There is no other recognised job type to offer.
If you want legal advice, do not rely on the above. Document your personal circumstances, copy your solicitor, and make an appointment. Comments etc. welcome to [email protected]
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Jim Hackett is Principal Solicitor, Beyond Horizons Lawyers, Cairns