A critical election for industrial relations reform and the future of higher education
13th May, 2022
Anthony Forsyth, RMIT University and Labour Law Down Under Blog. This piece is also being published in the National Tertiary Education Union’s publication “Sentry” (2022 federal election edition).
The 2022 federal election outcome will be pivotal in determining the future shape of Australia’s higher education system.
The Coalition Government has demonstrated its disdain for universities and their staff over the last 10 years through a series of cuts to funding, ministerial intervention in the ARC grant process and fee hikes for students in courses not considered ‘job ready’ (targeting the humanities in particular).
Most cruelly, during the COVID-19 pandemic, the Coalition excluded public universities from the JobKeeper income support scheme. Combined with the huge drop-off in international students, this exposed the sector to the loss of approximately 35,000 jobs.
The Coalition’s disregard for those who teach and research in the nation’s universities, and keep them running, is also exposed by its refusal to deal with glaring problems in the industrial relations framework.
The proliferation of wage theft across the economy in recent years has also been evident in higher education. A Senate Inquiry into Unlawful Underpayment of Employees’ Wages noted that 21 of Australia’s 40 universities have been implicated in wage theft and the subject of probes by the Fair Work Ombudsman. Casual university staff have been heavily impacted, with underpayment arising from ‘piece rate’ forms of payment for marking and other practices which result in work being unpaid.
On this issue, it must not be forgotten that in March last year the Coalition walked away from the provisions in its own industrial relations reform bill that would have imposed higher penalties and criminal liability for employers who engage in wage theft. Faced with Labor, Greens and some cross-bench Senators opposing other elements of the bill, the Government petulantly withdrew the underpayment provisions – even though it could have secured their passage with the support of Senator Stirling Griff.
Other elements of that bill were enacted, but these provisions simply locked in the ability of employers to continue engaging casuals on a long-term basis. A new definition of a ‘casual’ was inserted in the Fair Work Act which preserves the engagement of an employee on a casual basis, if there has been no firm commitment from the employer to continued work based on an agreed pattern or schedule. This is determined as at the time the employment commences. How the contract evolves in practice is not relevant. If the employee ends up working for that employer for many years on a more fixed roster, it doesn’t matter. Once a casual, always a casual!
These amendments insulate employers from claims for leave and other entitlements from employees who have received a casual loading. Simultaneously, new provisions were enacted purporting to give casual workers the ability to convert to a permanent position. But the weakness of these casual conversion rules has already been revealed: at some universities, only 1% of the large numbers of casual staff were deemed eligible to receive an offer of conversion.
All of this fits within the wider denial by the Morrison Government (and its business allies) that there is any problem with insecure work in Australia. The facts tell a different story, especially in the higher education sector. According to federal government data, the level of casual employment in universities – especially in teaching-only roles – has been rising since 2010. A Senate Committee examining job insecurity concluded last year that: ‘The COVID environment has accentuated flaws in insecure working arrangements [in higher education] that are long overdue for policy reform and correction.’ Both the ALP and the Greens have made firm policy commitments to provide casual and contract workers with greater employment rights and entitlements.
Finally, the Coalition has presided over an enterprise bargaining system that fewer and fewer employees are able to access – and a diminishing window in which workers can meaningfully exercise the right to strike. The Fair Work Commission, heavily stacked with business representatives (and a former Liberal MP!), has allowed employers like Murdoch University to walk away from enterprise agreements and therefore enhanced their negotiating power in bargaining.
All of this, combined with the inability of workers and unions to bargain across sectors or industries, has contributed to very low growth in wages for the last decade. Without detailing specific plans, the ALP and the Greens have pledged to tackle this problem.
The May 21 election represents a dual opportunity for NTEU members: to end the Coalition’s culture war on Australian universities, and their long-running attack on the rights of Australian workers.
 Gavin Moodie, ‘Here’s what the major parties need to do about higher education this election’, The Conversation, 20 April 2022.
 Eliza Littleton and Jim Stanford, An Avoidable Catastrophe: Pandemic Job Losses in Higher Education and their Consequences (Centre for Future Work, September 2021); see also ‘Pandemic-hit unis cut up to 27,000 jobs in a year’, Julie Hare, Australian Financial Review, 13 February 2022.
 The Senate, Economics References Committee, Systemic, Sustained and Shameful: Unlawful Underpayment of Employees’ Wages (Report, March 2022), 14; my own employer RMIT University is among those implicated, see Adam Carey, ‘RMIT casuals win millions in back-pay as Ombudsman pursues 14 unis’, The Age, 25 November 2021.
 The Senate, Economics References Committee, ibid, 91-95.
 Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill, Schedule 5.
 Paul Karp, ‘Coalition abandons crackdown on wage theft as Senate passes gutted industrial relations bill’, The Guardian (18 March 2021).
 Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth).
 Peter Hannam, ‘Australia’s universities converting as little as 1% of casual staff to permanent despite labour law change’, The Guardian, 18 November 2021.
 Department of Education, Skills and Employment, Higher Education Statistics, presented in The Senate, Select Committee on Job Security, Second Interim Report: Insecurity in Publicly-funded Jobs (October 2021), 144-147.
 Ibid, 189.
 Labor, Secure Australian Jobs, at: https://www.alp.org.au/policies/secure-australian-jobs
 Re Murdoch University  FWCA 4472 (29 August 2017).
 See the Labor and Greens policies, above.