Employment umpire quashes Australian university staff deal

Australia’s industrial umpire has annulled a university workplace agreement that was approved against the wishes of the academic union, in the latest defeat for higher education administrators who negotiate directly with staff.

A full bench of the Fair Work Commission (FWC) has quashed the Southern Cross University (SCU) enterprise agreement after concluding that “misrepresentations” by management had secured staff support.

The agreement proposed by SCU had been backed by the Community and Public Sector Union, which represents some non-academic university staff, but opposed by the National Tertiary Education Union (NTEU), the sector’s main employee representative group.

The proposal narrowly won staff backing in a poll last November, with 685 votes in favour and 604 opposed, but the NTEU discouraged the commission from formally endorsing the deal.

FWC commissioner Phillip Ryan overruled its objections, approving the agreement in August. The full bench has now overturned that decision, finding that staff had been swayed by promises of a A$750 (£391) “sign-on bonus” to be paid as soon as the proposal won majority support.

In fact, the bonus was only payable when the agreement secured the commission’s approval.

The FWC found that the “misleading” promises had skewed the results, especially among casual staff who constituted more than half of eligible voters. “Casual employees in particular, paid as they are by the hour, were likely to consider a financial inducement to be material to their interests and relevant to their voting intention,” the commission’s published decision says.

“A closely contested ballot [was] distorted by a material misrepresentation concerning a contingent financial payment to encourage a cohort of casuals to vote.”

NTEU general secretary Damien Cahill hailed the decision “a massive win” and said SCU management should “address its relationship with its staff and their union by returning to the bargaining table”.

“We hope all universities will take notice of this significant decision,” Dr Cahill said. “The NTEU will stand against any attempt to circumvent negotiations with union members.”

SCU vice-chancellor Tyrone Carlin said the decision had raised “important questions” for the institution. “[It] has the unfortunate effect of reintroducing uncertainty that we hoped had been resolved…after the earlier determination…to approve our 2021 enterprise agreement,” he told staff.

“Yesterday’s decision does not impact the pay increases and back pay arrangements that have already been put in place. We said that we would provide these, we did, and we stand by that.”

Charles Darwin University experienced a similar setback early this year after sidestepping the union. Staff had voted in favour of management’s proposed agreement in November, despite NTEU objections. But the FWC refused to approve the agreement in January over doubts about casual staff’s eligibility to vote.

However, that decision was reversed in March when the commission endorsed the agreement.

Other universities’ attempts to bypass the union have mostly ended in failure. Administrators at Curtin, Deakin and Newcastle universities were forced back into negotiations with the NTEU after staff decisively rejected proposals that lacked union backing. Non-union ballots at Griffith University endorsed a proposed agreement for professional staff but rejected the academic version.

The four institutions subsequently reached agreement with the NTEU. The FWC has approved new enterprise agreements at 19 universities over the past year, with more deals in the wings. Staff at UNSW Sydney and the Australian National University have overwhelmingly endorsed workplace agreement proposals.

However, bitter industrial conflict prevails across Victoria, with seven of the state’s eight public universities yet to renew their enterprise agreements.

john.ross@timeshighereducation.com