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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Educational Services (Schools) General Staff Award 2010


(ODN AM2008/33)

[MA000076 Print PR988936]]




9.51 AM, WEDNESDAY, 29 MARCH 2017


VICE PRESIDENT CATANZARITI:  Thank you.  Submissions, Ms Gale?


MS GALE:  Thank you, your Honour.  I should note a change in appearance that today, as well as the NTEIU, Mr McAlpine and I also appear on behalf of the Community and Public Section Union, the CPSU.




MS GALE:  The parties have conferred about an approach to using the next two days, your Honour, and there is a proposed timetable of indicative times.




MS GALE:  Obviously, your Honours and Commissioner, we're in your hands as to the best way to proceed.  But the parties propose that it's probably the most efficient use of the time if we proceed in the manner set out.


VICE PRESIDENT CATANZARITI:  Yes, there's no problem with it.


MS GALE:  I should check whether anybody else has any other housekeeping matters to raise.


MR RUSKIN:  Your Honours, given the timetable AAMRI was proposing to excuse itself from the proceedings until tomorrow morning, or around 12 o'clock when the NTEIU will make submissions about research medical – research institutes.


MR McALPINE:  And likewise.




MR RUSKIN:  Thank you, your Honour.


MS GALE:  Thank you, your Honour, I should add in relation to the timetable around the research institute's matters and I have discussed this with the other parties that in addition to the schedule set out there, we would propose that at about 3pm, there be a short opportunity provided to the NTEIU for reply, if there are any new matters arising from the AAMRI and APESMA submissions.


VICE PRESIDENT CATANZARITI:  Yes, the timetable might move faster.  We can always be optimistic.


MS GALE:  Indeed.


VICE PRESIDENT CATANZARITI:  Don't look so optimistic Mr Pill.


MR PILL:  I've been conditioned, your Honour.


MS GALE:  Having dealt then, I hope, with the housekeeping matters, I will hand over to Mr McAlpine for an introduction to the NTEIU's submissions.


VICE PRESIDENT CATANZARITI:  Are there any other housekeeping matters, no?


MR PILL:  No, your Honour.




MR McALPINE:  Thank you your Honours, Commissioner.  This introduction is fairly brief.  Often in these matters, we take the Commission to the general legislative scheme.  I've recently had the benefit, obviously, as many others have of reading the so-called penalty rates decision.


VICE PRESIDENT CATANZARITI:  Yes, I am familiar with it.


MR McALPINE:  Which I'm sure some members of the Bench are familiar with and I must admit, I haven't read the whole 500 pages, but I have read the section about the legislative scheme.  While the NTEIU, like a number of other unions, doesn't actually like the substantive outcome, in our opinion, the proper construction of the legislative framework, is set out in that decision.  The decision is that sense is based on what we consider to be, certainly, a defensible and a proper application of the legislative scheme.


We don't – we think that there's plenty of guidance in there and we don't think the Commission would be very pleased with us giving a detailed account of what we see the legislative scheme as, because we think the Bench as currently constituted is well aware of those things.  There is one thing that we think that comes through in some of the submissions and it seems to me that it's dealt with in the penalty rates decision is the issue about whether a variation is necessary to achieve the modern award objective.


I know that we can approach sort of sophistry about these things, but it does seem to me clear, from that decision, that it's the provision that needs to be necessary to be included in the award, not the variation.  Similarly, it's not that a variation can only be approved, because the variation – sorry, it's not that the variation has to be necessary, it's the provision that has to be necessary.


We say, for example, in relation to something we'll come to later about changes to the expression of the overtime clause, that the current provision is necessary to achieve the modern award objective and the proposed provision would be necessary to achieve the modern award objective and that doesn't mean that the Commission doesn't have the discretion to say well this better expresses the way in which the entitlement should be set out in the award.


Unless the Commission has questions for us about each of our proposals, we make a non-binding promise that we won't take the time allotted to us this morning.  We think all the parties have set out well the arguments for and against each of the claims on both sides and whether we agree with them or not, we think that there's a fairly comprehensive set of arguments set out there.


Unless the Commission – well, we hope the Commission will seek clarification and questions on matters that it's unsure about or unconvinced of in what we say, but to the extent that doesn't occur, we certainly don't propose to take the full time allotted.  What we will do is to try to provide a brief outline of what we see as some of the main points and then as we said, to identify any clarification the Commission requires.


We say that the central test for all the applications is – well, all the positive applications as opposed to the deletions is simply – well, whether it's simple or not in its application, it's simple in its expression.  Whether what is sought is necessary to achieve the modern award objective.  The penalty rates decision, it seems to me in the way it was set out, went on a number of journeys, but just kept coming back to that point.  We would stand by that and say that we think that the positive claims that we've made are necessary to meet the modern award objective.


There is one thing which is on the public record, that we felt that we have mentioned in our submissions, is that Murdoch University has applied for the cancellation of its enterprise agreement.  That has not happened in this sector before and obviously that application hasn't been dealt with yet.


VICE PRESIDENT CATANZARITI:  As I understand it, there was an application referred to a Full Bench, which was refused, so it's now going back to Commissioner Williams.


MR McALPINE:  That's right.  That application, obviously hasn't even been heard yet and we don't know the outcome and we're opposing the cancellation of the agreement, but we say that to some extent that's an indication that what we've said up until now, which is that it can be assumed that there are wall to wall enterprise agreements across the sector, is no longer the case.


We've always conceded that in terms of how the award safety net operates, you've always got enterprise agreement sitting above those, and the award safety net really only operates for the purpose of the BOOT.  But that, at least, we certainly consider that Murdoch's application is a significant one in that respect, and it's just changes the landscape to a small extent.


Mr Pill has made a lot of comments about the evidence in general and we will just make a few.  Most of the employer evidence was from senior managers and we say senior managers, the conclusion and opinions they have about the sector and how it operates obviously need to be given some weight.  The people - it would be churlish to say that those people are not experienced in the sector and have wide knowledge.


But we also say that much of their evidence – very little of their evidence was actually backed up by any data or hard information.  It was mostly opinion and conclusion evidence and we say that's fine.  We say in a Tribunal like this, that sort of evidence should be heard, but we do make the point that we don't think much of their evidence was really backed up by very much data or information.  That the NTEIU by contrast, has attempted to share with the Bench and the other parties, all the information that it has that it considers to be relevant to the claims.


We think it's surprising that in a $32 billion industry, the employers have, or seem to have so little data about some of the issues that we have agitated.  We take it no further than that at this stage.


That's really all we wanted to say by way of general introduction and then we thought, if the Commission pleases, we'll simply briefly address each of the claims and their merits and why we consider them necessary to meet the modern award objective.  Thank you.




MS GALE:  Thank you, your Honour.  We propose to go through the claims in the order that's set out at the front of our submissions of 3 February, which echoes the order from our opening submissions, part A through to part M.  Then, of course, say something about the common complaints.


Having said that, I would note that in relation to part D which is described as drafting errors about the casual academic rates of pay, which is a proposal to reinsert some definitions from the pre-reform award into the casual academic rates of pay in relation to tutoring and lecturing that the employers are no longer opposed to that proposal, as it now stands.  On that basis, we don't intend to address part D unless the Commission has any questions for us.


I'll note that parts G and H are no longer pursued, so we don't intend to address those.  Part I has been resolved, we believe, in the exposure draft process and if the Bench is content with that resolution, we would not be further addressing part I.


Part L which deals with the research institute's – no, I'm sorry, part – yes part L, which deals with the research institutes, will be dealt with tomorrow.  In relation to part M, the casual academic conversion issue and the common claims, we have set out our position in the written submissions and would have nothing to add to that, other than unless if the Bench has questions in relation to that.


Having said all of that, I should also start by saying on behalf of the Community and Public Sector Union, that the CPSU has seen and endorses the NTEIU's submissions in this matter.


Turning then to part A and academic working hours.  The written submissions in relation to this are extensive and we don't propose, by any means, to revisit those.  But, what I would like to do is point to some of the things which we say make clear the need for the award to be varied in order to meet the modern award's objective.


First, I'd like to consideration of the situation of part time workers.  The evidence is that there's in the order of 6,500 part time academic employees I this industry covered by this award.  That's not casuals, that's fixed term or ongoing part time employees.  Each of that 6,500 is employed for a fraction of full time ordinary hours, whether that's .4, .5, .2 or some other fraction.  The evidence is that the average fraction is .7.


If I can ask your Honours, to turn to the Academic Award, the Higher Education Industry Academic Staff Award 2010 and particularly, to clause 11.2 of that award.  We say that in all relevant respects, this remains as it is here in the exposure draft.  There are no changes proposed in relation to the important concepts in the description of part time employment.


Part time employment is defined as employment for less than the normal weekly ordinary hours specified for a full-time employee for which all award entitlements are paid on a pro-rata basis, calculated by the reference to the time worked.  We say it is already clearly inherent in the structure of the award that there has to be some measure of the time worked.  Not only the time worked by a full-time employee, but the time worked by a part time employee, otherwise that reference to pro-rata can have no operative meaning.


In light of all of the evidence and argument before you about the way that academic work is organised, and the gap between an allocation of a workload, and any view about how many hours of work that workload entails. I'm sure you can see the logical difficulty in this provision in the absence of any regulation or understanding of the normal ordinary hours specified for a full time academic.


Now, it's trite to say that the award says that the ordinary hours will be 38 for the purposes of the NES.  It doesn't tell us what the normal ordinary hours worked by a full time academic are.  Because there is no provision which would, in any way prevent, either an employer requiring or indeed, an academic simply working more than 38 hours.  The evidence before you is that both of those things are very widespread in this industry.


The employers have told us that it's an easy prospect to work out the fraction for a part time employee and therefore what their quantum of entitlements and award entitlements should be.  Basically, they've said it's by allocating a fraction of the workload that's allocated to a full-time employee.  In some cases, it's been discussed in terms of a fraction of the workload components that are allocated in a workload model and in others, it's been discussed simply by terms of a number of days.  If they're .6, then that's three days a week; there's no actual mention of what they do on their weekends while all other academics are doing things on their weekends.


There's no mention of whether those days are hours and 35 minutes or eight hours or 12 hours.  There's no actual evidence before you that the current practice in relation to part time employees, meets the test of the award.  I have to say those words in the award, are replicated in enterprise agreements.  It's not the case that the presence of enterprise agreements means this problem doesn't arise.  The problem we say is there in the current regulation.  It's not just a technical problem.  This is a real world problem in terms of the proper regulation of part time work.


The inevitable logic of what the employers have said is that they believe a full-time workload to be analogous to normal weekly ordinary hours worked.  If a fraction of that full-time workload can justify the fraction of appointment of a part time worker.  They must believe that a full-time workload is analogous to hours worked, otherwise a fraction of that load cannot be analogous to hours worked for a part timer.


But the employers have also assured us that full time academics are not paid an hourly wage, but a salary that compensates them for all and any hours worked.  That how long any individual full time academic will actually work, that is, what that individual academic's ordinary weekly hours of work are, is impossible to predict since the work is subject to high levels of individual discretion and flexibility.


It's entirely possible for one academic – if we've got three academics who are allocated the same workload under the same workload model and it's called a full-time workload – it's entirely possible that one academic will spend 40 hours completing - 40 hours a week on average over a year completing that workload.  Another might spend 50, and a third, 60.  If one chooses to spend more time preparing their lectures or to engage in a more time-consuming form of research than another, that is we're told, entirely a matter for them.


The consequence however, is that the normal, ordinary hours of work, for each of those employees is different.  How then, do we determine what the proportion is for a part timer, by reference to the hours worked?  At one point in the proceedings, I think it was Mr Picouleau was asked what the – what happens at Monash University if an employee has more than a full-time workload, and he simply replied that he didn't think such a thing would happen, or had happened.


Now, by the logic of the employers, that is that the salary paid to academic staff compensates them for all hours worked, we say logically it could not happen.  However, many hours the person works, that is by definition, their full-time workload.  It's impossible for them to exceed a full-time workload, because if they do more work, it's still part of their workload.


The consequence of that model, or that approach to how the award works is that if an employee is allocated a certain workload and that workload takes them, let's say, an average of 38 hours a week over the year.  The employer comes along and allocates more work, I need you to teach this extra subject, then there is no entitlement that employee has to say no.  There is no point at which they can say my hours are full.  There is no constraint on - - -


VICE PRESIDENT CATANZARITI:  Ms Gale, my understanding of academic workload models is that they're done collaboratively in the department, so that there is a dialogue that occurs.  It's not something that occurs at a random process.  There's actually a process.


MS GALE:  There is a process.  That process is often the result of extensive negotiation and enterprise agreements.




MS GALE:  It's certainly not a process that's required by the award or protected by the award.  It's certainly not a process that is uniform or works in an ideal manner.  If you look at the academic workload provisions in the agreements, in the final analysis, after a collegial discussion, it is up to the employer, in almost every case, to allocate and finally determine what the workload allocation will be.


VICE PRESIDENT CATANZARITI:  And there is a dispute resolution mechanism if there is a dispute over the academic workload model.


MS GALE:  Well, there are some, in some agreements, there's certainly not in the award.  We say that the allocation – there is, in a sense, nothing to dispute.  If an employer, after consultation, if an employer goes through the process, the process may be disputed, but if the process is followed, and at the end of that process, a person is allocated more work than they wish to have, there is certainly no right of veto for the employee.


VICE PRESIDENT CATANZARITI:  Well, that's not my experience on the Bench. I have had disputes in this industry on agreements and the academic workload model, where – with your union, where people have challenged the workload model has been applied and the allocation of the work, and quite recently, in fact.


MS GALE:  Your Honour, I'm not suggesting that the rights that we have managed to obtain through the bargaining stream, are not rights that we seek to exercise and enforce for our members.  I'm saying that those rights are not uniform; they are not unequivocally written in the employees' favour in those contested instances, and in any case, they are not, in any way, reflected in the award.


To the extent that those processes provide a safety net, they are a safety net we have had to bargain for.  There is no safety net in relation to academic working hours in the award.  In the award, under the award stream, if an employee is given more work to do, there is no provision for collegial consultation; there is no provision for appeal; there is no avenue by which the employee could argue that that is not a reasonable workplace instruction and whereby they could refuse to take that additional work.


Certainly, by the logic of the employer's position in these proceedings, that the employee is already paid for all hours they do on a salary basis and they have no right to any particular limit to their hours of work.


DEPUTY PRESIDENT KOVACIC:  Ms Gale, is that scenario, or that picture that you've just painted there, a reflection of the reality in the sector and acknowledging Mr McAlpine's comments before in respect of Murdoch University, that in reality, enterprise agreements govern the working arrangements in respect of academics across the sector?


MS GALE:  The reality is that to the extent that those issues are regulated, they're regulated in the enterprise agreements or employer policy.  Yes, that's true.


DEPUTY PRESIDENT KOVACIC:  Putting it perhaps a little bit more directly in the sense that the award, were it to include a provision around work allocation, would have no practical effect, given the penetration of the enterprise agreements in the sector, in respect of academics, other than for bargaining purposes for the BOOT test, as Mr McAlpine put it?


MS GALE:  Well, not just for the BOOT test, but for bargaining purposes.  In that circumstance, the union and its members would not be negotiating for a safety net.  We would be negotiating from a safety net.  And yes, for the BOOT test, we say that at the moment, workload models that allow people to be allocated significantly more than 38 hours of work, or that in practice, have the effect of people working significantly more than 38 hours of work.


DEPUTY PRESIDENT KOVACIC:  But I think the point that the Vice President was making, is that those models have all been – as a result of negotiations at the institution level, or the enterprise level – I'll choose the language of the Act, and to the extent that those mechanisms are either not working, the dispute resolution process of the particular enterprise agreement provides a mechanism for addressing any particular problems.


MS GALE:  But the dispute resolution procedure provides a mechanism for addressing problems.  In the operation and application of those provisions, there is no mechanism for addressing problems in an old section 99 dispute manner, that if the provisions are operating in a manner which is unfair and oppressive, the only avenue through a disputes procedure is if there is an error in the application of those provisions, not that the provisions themselves are wrong or unfair.


The union has negotiated for those provisions.  We think we have done reasonably well.  We do not think that any of the existing workload provisions are adequate, but that's not the question before the Commission today.  The union has obviously had to give away other matters at the bargaining table in order to achieve those provisions and when it comes to the BOOT test, those provisions are – and whether they work well or not, whether they are an adequate safety net for working hours for academic staff, is not something that can be measured.  The employer's get that free in BOOT test terms.


The union will, and always has continued to try every avenue we can to protect our members from excessive working hours.  We say the evidence is that that's been a very limited effect because there is strong evidence before you, that many academic staff are working long hours, not simply because of an optional exercise of professional discretion to go above and beyond what's required of them, but you have the testimony of many academics and the evidence from research that shows that there are a significant number of people who are working long hours in order to meet the basic expectations of their job.


We say, in that context it's clear that the BOOT test needs to address working hours.  We also say that the current award provision, because it only describes ordinary hours without any consideration of what the consequence is, if ordinary hours are exceeded.  The current award provision, fails to provide any point of reference for ordinary hours for any member of academic staff in the country and for any set of negotiations in the country.


Because ordinary working hours, without some consideration of what happens if ordinary working hours are exceeded, is meaningless.  Because saying that these 38 hours are ordinary and the next 38 aren't, has no practical effect, except for the purposes of the NES to tell us how much leave people accrue.  It doesn't tell us anything else that's useful.  It certainly doesn't tell us anything in terms of whether the enterprise agreement provisions on workload allocation for academic staff, meet or fail the BOOT test.  The BOOT test is simply not in issue in relation to those provisions.


If it's the case that academics are paid for all of the hours that they work, and if it's the case that some academics working what their employer has told them is a full-time workload, are working 60 hours a week, and we say there is evidence before you that that is the case, then what does that mean for a part time employee?  Does that mean a part time employee working 30 hours a week doing half that workload, is entitled to 50 per cent of salary?


If they're assumed working hours are measured by reference to the workload, then how do they establish that if they're working 30 hours a week, they should be paid, and accrue entitlements at a greater rate than a 19 hour a week employee.


DEPUTY PRESIDENT KOVACIC:  Are you suggesting that that's the practice at the moment in the industry?


MS GALE:  Yes, absolutely.


DEPUTY PRESIDENT KOVACIC:  That part time employees who may be on the basis of the figures that you've used, working 30 hours per week, are being paid at a proportion of 50 per cent of what a full time academic might be paid, as opposed to whatever 30 divided by 38 is – over 38 is?


MS GALE:  Certainly we suggest that that is the case.


DEPUTY PRESIDENT KOVACIC:  Isn't that a case of straight under-payments?  If that was to be the reality in the sense that if they're being paid at 50 per cent of a full time equivalent, they're being under-paid relative to the ratio of the award?


MS GALE:  A member who I spoke to at Monash University last week, advised me that she is employed .6, three days a week.




MS GALE:  She's working 45 hours a week in order to get her teaching and research obligations done.


DEPUTY PRESIDENT KOVACIC:  But that's a different proposition from what I understood that you were putting in the sense that an employee who may be – part of their part -time agreement, working what the agreement is for 30 hours per week.


MS GALE:  No, my point is - - -


DEPUTY PRESIDENT KOVACIC:  In that case, I misunderstood what you were saying.


MS GALE:  My point is that the agreement is not for a number of hours.




MS GALE:  The agreement is for a proportion of a full-time workload.  From that is assumed a fraction of salary that will be paid to that employee.  The award says it shall be done by reference to hours worked, but the evidence before you is that in fact, it's done by a proportion of a notional full-time workload.  The effect of that is that those employees are vulnerable and yes, we say that that goes happen.  It does happen and it's quite widespread.


We say that the survey evidence in these proceedings, I don't know the precise reference, but I can provide that tomorrow.  There was survey evidence about part time employees who reported that they were working more than 40 hours a week.


We say that that capacity for the employer to increase the ordinary weekly working hours of a full-time employee to above 38, raises the real question of what then does the award mean for a part-timer.  If a full-timer's work load is such that they are required to work 50 hours a week, then what is the pro-rata by reference to hours worked?  Does it mean that their entitlements would be reduced, if they continued to only work 25 hours a week?


We say there's three things that the evidence shows in these proceedings that the employers have been resisting admitting.  The first is that a significant majority of academic staff work long hours.  I think there's a grudging admission in the AHEIA submissions that there might be some that do.  We say the evidence is clear.  A significant majority of academic staff work long hours.


We say the evidence is clear that overtime, the balance of working hours for academic staff has shifted, so that a greater proportion of their time is now spent on work allocated or required by their employer and less time is available for genuinely optional endeavour.  We say that was the evidence of several of the NTEU's professorial witnesses.  For many, the first category, the work that is allocated or required by the employer, has now expanded beyond what can be completed within a 38-hour week.  We say the evidence shows that and the employers have failed to grapple with that issue or to conceive of it as a problem.


The third proposition, we say, is clear on the evidence before you, is that the existing practice in the industry in relation to all components of academic work, and not just research, is that instead of measuring or regulating the actual time worked, there is an estimate made of how much time it's reasonable to allow for a particular volume or bundle of work to be completed.


The evidence of Mr Picouleau is interesting, at paragraph 6713 of the transcript.  He said "Look, the problem for me is this is introducing the concept of these – well, one of the problems is introducing the concept of the ordinary hours of an academic.  It's just not a concept that's been used or I'm familiar in the context of academic employment.  The concept, that is, of ordinary hours of work for an academic."


We say, that frankly, whether or not that's a concept the employers are familiar with, it is one which is central to the framework of modern awards and which section 147 of the Act makes a mandatory part of every modern award.  The Commission is required to ensure that the modern award deals with the ordinary hours of work for the classifications of employees covered by the award.


We note, that section 147 allows for two ways an award can deal with the ordinary hours of work.  One is to specify the hours.  We acknowledge that in this industry, that is a challenge.  The other, is to provide for the determination of hours, and that is the model that's been put forward by the union in these proceedings.  We set out a way of providing for the determination of ordinary hours that is consistent with the way that all determination of academic hours is currently managed in the industry, and that is, through assumptions about the time it will take to complete a bundle of required work.


In order to be a fair and relevant safety net, we say the assumptions about how long it will take, must themselves, be reasonable and transparent and based on a realistic estimate of the time required.  But that is an estimate, not an accurate measure.  It has to be a fair and reasonable estimate.


Now there's a hoary old chestnut that's come up again and again in these proceedings, that it's easy to regulate the teaching hours.  We'll just sort that.  We can regulate the teaching hours and the rest somehow flows from that.  Everything else will take care of itself.  We say there's several reasons that that is wrong.  First, teaching work itself, involves substantial room for individual variation in the time taken.  Regulating the number of hours of lectures that a particular academic will be required to deliver in a year, tells us nothing about how long will be spent in the preparation of those lectures.


Employer witnesses agreed with the proposition that not only one person perform teaching duties faster or more slowly than another, but within the work of a single academic, the time they take to prepare one lecture, for example, might vary widely from the time they take to prepare the next.  The presumption that allocations of time for teaching don't involve the same sort of broad assumptions that we're talking about in these proceedings, is wrong.


Those assumptions in relation to teaching time are well traversed and have a long history in the industry.  There's been extensive contestation about them.  I think Dr Kenny gave evidence about problems at the University of Tasmania in relation to some of those issues.  But it's not been beyond the wit of the industry to develop an approach to the regulation of teaching work that's built on assumptions.  But they are assumptions.  There is no neat answer to how long the teaching work will take.


We say the fact that there's wide spread assumptions in relation to teaching doesn't mean that only teaching suits itself to those assumptions.  We say, on the contrary, it shows that other areas of academic work which share those same characteristics have been highly variable as a result of both external factors and individual exercises of professional discretion, that other areas can also be subject to the same approach of regulation.


It was asserted by union witnesses and conceded by employer witnesses, that it's impossible to ascertain whether the time allocated to teaching duties is fair in the absence of knowing the totality of the work required.  Unless you know how much time will be available to perform research, including knowing what the research output expectations are, where those have been prescribed, and how much time will be available for other things which have been set out in an academic's workplan or performance expectations or otherwise in their workload, you can't know whether the teaching allocations, the regulation of teaching is fair.


For example, at transcript paragraph 5364, Professor Coaldrake was asked "Would you agree that you can't regulate workloads for teaching, without knowing what the other responsibilities of the employee are?"  He said, that's true.  You've got to understand the full picture.  We say that the approach of simply regulating the teaching has nothing to say when working hours increase as a result of employer decisions to impose increased requirements in other areas such as increased research output requirements.


It's a relic of a bygone era, when teaching was really no more than 40 per cent of the workload, and when research was genuinely self-directed, in terms both of the amount done and the nature of it.


The other chestnut, we say, is the proposition that research work is so ineffable that it's impossible to have any realistic relationship between the idea of working hours and the volume of research work, whether that be measured in inputs or outputs or some mix of the two and whether it be measured across a year or some longer period.  This elevation of research work to some higher plane above the realm of working time regulation, we say, is entirely disingenuous.


First, universities routinely administer workload models in which time is allocated for research and employer witnesses in these proceedings accepted that research expectations should be set at a level that an academic could reasonably be expected to achieve them in the time that's allocated for them to do their research.


Second, and quite simply, research work is still work.  The fact that it's part of the job that many people value it most highly, and that it has its own intrinsic and extrinsic rewards, doesn't mean that the employers should be excused from considering that time as time worked and taking responsibility for that time, as time worked.  And thirdly, we say that if research is incapable of measurement in terms of reasonable time estimates, then how can there be any enforceable level of wages for part-time research only academics?


I'd like to turn briefly to the hypothetical that was posed by the AHEIA in their closing submissions in reply.  This is found in a box on page 16 of those submissions.  This is described as a fictional case study.  It deals with a lecturer level A, who teachers in French and modern English Literature; is a specialist in Camus and teaches more broadly across French existentialist writers we're told.  They have a discussion with their supervisor about workload allocation.  The supervisor is of the view that what's been allocated is reasonable to be able to be achieved within an average 38-hour week.  The lecturer says, it's too much and they have a collegial discussion about that.


The supervisor has a priority of (a), keeping the department budget down by not approving overtime work, and (b), of getting research publications, they want to get three articles.  So, the supervisor has some suggestions about other areas of work that could be cut back, and particularly attendance at conferences and the time spent on work as a member of the university counsel.


The lecturer doesn't like those suggestions and they access what might be described as a workload appeal process.  That process results in a proposition that it seems, clearly put, that the lecturer should continue with all of the activities that they have proposed and that would constitute an over 100 per cent workload and that therefore that lecturer would be entitled to some overtime payment at the end of the year.


Now, all of this we say, is presented as though it's some horrible confrontational discussion that's going to shock the lecturer to have it suggested to them that they should focus on these activities and not those.  That it's going to shock the supervisor when the lecturer says, well actually, I think these other activities are really important.


This is what happens now.  This is the collegial discussion.  Everybody has their wish list.  Every supervisor has their list of things that need to be done.  I think Professor Vann from Charles Sturt University said "the starting point is, you've got to look at the things that need to be done".


The likely outcome of that discussion, under the NTEU's proposed model, is that the university is going to say, well you're required to do these things.  We're not going to stop you doing those other things, but if you do, it's not required work.  Whether you go to extra conferences, our priority is we want you to do these things.  That's what happens now.  If that happens, and if the employer, in the final analysis makes it decision that if doing everything is, as this appeal's committee has determined, going to result in more work than we're willing to require of you, then we'll pare back what we're requiring of you.


The scenario that they present, at the end, the proposition that although there's been a fair and transparent process that has said this workload will take on average 48 hours over the year, and the university it seems, has agreed to the employee continuing with that workload, as their allocated workload, their required workload, and therefore been willing to take on that level of overtime payment for 48 hours, it's suggested here that if the employee then spent longer than 48 hours doing that work, they would have a claim to additional overtime.


We say that is a complete misreading of what is put forward by the NTEU.  The overtime arises from a reasonable estimate of the time to be taken, not from the actual time taken.  We say there is nothing in that scenario that should cause the Commission any concern at all.


If I can just say something about overtime.  The award at the moment doesn't have a cap on the number of hours that can be required, and it doesn't have any penalty on the employer or any compensation to the employee for working additional hours.  We say that in that context, the actual hourly rate of pay for academic labour is undermined.  There's no regulation of span of hours or span of days that one might normally find associated with a concept of ordinary hours.  There's a very high level of employee discretion in when and where the work will be performed.  The NTEU supports that level of discretion.  It's essential; it's intrinsic in the nature of academic work.


It's been suggested that somehow the academic rates of pay are all up-rates, that they incorporate – that they're loaded rates, incorporating any compensation that might otherwise be available for working long or inconvenient hours.  We say there is no evidence in the history of the award for that submission.  The academic rates of pay were set on a work value basis by reference to other properly fixed minimum rates award.


Exhibit B, which is the NTEU's opening submissions in this matter, has at pages 19 and 20 of that exhibit, a table that sets out how the rates of pay are undermined by the long hours of work.  If I can take your Honours to that table.  The first column in the table shows what the annual salaries are as an hourly rate of pay is an employee works 38 hours.  So, that's the annual salary divided to a 38-hour week.


At level A, the first step there is $23.86 and it shows that that is 101 per cent of the graduate engineer rate.  That is, the entry point for a four-year graduate when the relativities were originally fixed, it was the Metals Award, it's now in the Professional Employees Award.  It's basically 100 per cent relativity there for the entry point to an academic career.


If an academic works 45 hours, then the hourly rate of pay they get, since their salary is not adjusted, drops to $20.15 and that is only an 85 per cent relativity to the graduate engineer.  If the academic works 50 hours, given their salary is not adjusted, their hourly rate drops to $18.13 which is only 77 per cent of the graduate engineer rate.  A graduate engineer, we point out, is entitled to overtime.  There is no basis on which the employers can suggest that these are loaded rates.


We say that if there is no provision in the award that addresses the problem of long hours of work being required by the employer, without compensation, then the properly fixed minimum rates in the award are undermined in exactly the say just described.


We also point out that the overtime proposed by the NTEU is overtime light.  We propose a maximum penalty rate of 150 per cent, regardless of the number of consecutive hours worked or the days on which they are worked.  The overtime entitlement is only payable on an annual assessment of the required work and does not arise other than for casuals with respect to any particular fortnight or pay period, despite the evidence that there are some particular fortnights and pay periods in the academic cycle where people work extremely long hours.  We say, it's able to be averaged over the year, despite the fact that people will be burning the midnight oil to get the marking done after exams are in, for example.


We say that it is based on a reasonable estimation of the time required to perform the work, such that if an individual academic takes longer than that estimation, they get no additional entitlement to overtime.  The penalty rate component is capped at the rate for the top of level C.  The first 200 hours a year are paid at ordinary time on which the employee is getting neither a penalty nor any additional accrual of entitlements.  So, while it's described at ordinary time rates, it could be conceived as less than ordinary time rates, because it should be discounted for the fact that those hours of work are not accruing entitlements, which ordinary time hours generally accrue.


A margin of error is built in, so that no overtime payment entitlement would arise at all unless a workload estimated at 40 or more hours per week is required.  And a margin of error is built in so that entitlement to overtime payment is assessed by reference to bands of hours, rather than requiring precise measurements.  Now, we've proposed a set of bands; we're not wedded to any particular framework for that, but we do say that where the workload required of an employee, requires them to work very long hours, then that should be taken into account.


For all of the reasons advanced, we say that something of this sort is required in order to maintain the integrity of the award safety net, both in relation to hours and in relation to rates of pay.


It's arguable that the higher rates of pay in enterprise agreements sufficiently compensation people for the longer hours of work performed and we say that if that is the case, then that should be a matter for the BOOT test.  At the moment, it's not.  Those higher wages can be counted for the BOOT test against any number of off-sets and the extent to which they are an offset for long hours of work, doesn't arise.  So, the employers, we say, in BOOT test terms are getting those long hours for free.  That effectively, they're double dipping in the BOOT test.


The employers have attempted to make this issue much more complicated than it is.  They're wrong to say that the NTEU's proposed concept of required work incorporates any expectations regarding promotion.  An amendment was made to our claim in the course of these proceedings and at that time we made it clear and the wording now proposed makes it clear that it is work that is required to meet the performance expectations that are required by the employer.  Are those employers that require people to meet standards suitable for promotion, would be requiring people to do work aimed at promotion.  It's only in those circumstances that promotion would be an issue.


We say that required work as conceived in the NTEU claim is the work required of an employee by their employer.  If it is not required, but is something optional, that the employee chooses to do in addition to what's required, then it is not required work.


Their wrong to say that the NTEU clause requires the setting, recording or monitoring of academic hours of work.  It provides a mechanism based on existing practice in the industry that avoids any need to do so.  The NTEU clause leaves open the option for an employer to directly prescribe working hours which we can only imagine might be workable for a very small range of academic staff.


For example, some casual academics are employed in what's called Help Desk work where they staff a phone or a physical desk and take student enquiries in relation to their assignments.  Now, it's possible that an employer might choose to bundle that work into a non-casual appointment and to appoint a full-time employee to work only on the Help Desk.  That would be academic work; it could be work that it could quite rationally be considered has a starting time and a finishing time.  In that circumstance, an employer might wish to actually monitor the hours worked.


There may be some areas of research assistant work where the task is relatively routine and has a start and finish time and the employer might wish to say well, we're employing you for five hours a day or eight hours a day and we don't want you to work any time outside those hours.  That's possible; we left that door open.  It's irrelevant to the vast majority of academic work, and inappropriate for the vast majority of academic work.  We say it's mischievous to characterise the claim as in any way suggesting, that the recording of hours should be a standard model.


We say that the employers are wrong to portray a requirement to make a reasonable and informed assessment of the time that it's likely to take a competent employee to complete a known volume of work, as being a strange or a novel requirement that would impose complexity and uncertainty.  We say that this is actually how they go about it at the moment.  That is how the workload allocation processes claim to work.  Not only in relation to research, but also in relation to teaching and administration and service.


An award provision asserting a number of ordinary hours, does not in fact have any practical meaning unless it also includes some way of addressing what happens when employees are required to work more than that number of hours.  Other awards dealing with salaried professional workers, provide a variety of such provisions.  It's only for academic staff, that the award safety net is completely silent on that point and we've provided information about those other awards in our written submissions.


It's not an answer to say that an individual academic may refused a request to work unreasonable additional hours under section 62 of the Act, because no request to work a number of hours, is ever made.  What is made is a request that work be completed.  And in any case, as we've set out in our written submissions, the many provisos in section 62 would make a refusal by an academic very difficult to sustain in light of the factors that have to be weighed in the balance of determining whether a request to do additional work, let's say, rather than additional hours, is a reasonable request in light of, for example, the patterns of work in the industry.


If the employers are correct that it's not possible to make an informed, objective assessment about how long a particular workload and accompanying performance expectations would reasonably be expected to take, then we say on what possible basis do they say that an academic could ever mount a claim that the workload they've been allocated was a request to work any particular number of unreasonable additional hours.


So, their submissions are internally contradictory on this point.  On the one hand, they say it's ineffable, and on the other hand, they say but you can go a 62 claim with something so ineffable it can't be measured.  Similarly, if they're correct that it's not possible to make that informed objective assessment, then on what possible basis do they claim to be able to allocate part time hours, proportionate to a fraction of full time hours, as the award requires?


If it is possible to know what full time working hours are, and if it is possible to know what fraction a part time employee should be employed at, then logically it must be possible to know what hours are implicit in a full-time load, then the award must also be capable of dealing with the circumstances where a person is working more than full time and to provide for additional payment in that circumstance.


The last thing I'd like to say in relation to the issue of academic hours, is that the NTEU put forward a claim that's been criticised for being too complex.  We defend the level of detail in that claim.  We say that it appropriately sets out regulation for a matter that is not simple.  There needs to be a fair and simple safety net but simplicity has to be – the cloth has to be cut to fit the issue and in every award, there are some clauses that are longer than others.


We say however, if the Commission is not minded to the level of detail that the NTEU has proposed in our proposed clause, we say there is nevertheless, an issue before you.  We say it is clear that the award does not currently provide a fair and relevant safety net in relation to hours of work for academic staff.  That it consequentially does not provide a fair and relevant safety net in relation to wages for academic staff and that there is a problem that needs to be fixed.


We have put forward a proposal and we ask you to give effect to that proposal.  In our final submissions, we did also suggest a more general formulation that simply emphasises the essential elements of what such a provision might look like.  While we think it is preferable to have the protections for employers, that are inherent in our original proposal, we do also draw your attention to that formulation.  It's found in the NTEU's submission on reply of 24 March at paragraph 353.


That's all we have to say.


VICE PRESIDENT CATANZARITI:  Yes, we'll take a short adjournment.

SHORT ADJOURNMENT                                                                  [11.04 AM]

RESUMED                                                                                             [11.29 AM]


VICE PRESIDENT CATANZARITI:  Yes, Ms Gale.  Ms Gale, I should indicate, the Bench has read the very detailed written submissions, so you hope it will move a bit faster.


MS GALE:  Yes, your Honour.  Perhaps we should have addressed this during the house keeping part of the agenda, but would it be helpful if the exhibits were marked – sorry, the submissions were marked as exhibits.


VICE PRESIDENT CATANZARITI:  I'm easy either way.  I mean, we've got the submissions in two folders, numbered ourselves.  We have just renumbered them.


MS GALE:  We're content either way, your Honour.


VICE PRESIDENT CATANZARITI:  Probably just leave them as they are, because the Bench is working from the same folders.


MS GALE:  I will return to one issue that was discussed briefly in relation to academic working hours and that is the role that existing collegial discussions and collegial processes have in the current regulation of academic working hours.  Those collegial discussions do occur and we say to occur in most cases at most universities.


Nevertheless, it has to be noted that they happen within a budget and staffing framework that is set by the employer that in many cases, what's being discussed is a collegial distribution of overwork and I particularly draw attention to the evidence of Professor Leach from PN6448 and forward, where he described the effect of a central decision about research allocations and the way that that has impacted on collegial discussions he has with his staff about workload allocation.  There are constraints which cannot be collegially done away with.


In the end, the decision whether reached collegially or otherwise, is a decision of the employer and it has the effect of an instruction to the employee about their work allocation for the year.  There was evidence, for example, that constraints on those discussions such as research output expectations may have some collegial input into the development of those expectations, but they are in the final analysis, centrally adopted and imposed by the employer.


I'll turn to the policy familiarisation and discipline currency payment claim.  The principle here is quite simple, that people should be paid for the work that they do.  We say that's particularly true for insecure and hourly paid casuals.  This workforce, unlike casual employment in many other industries, and indeed, general staff casual employment in this industry, academic casuals are employed and paid for discrete pieces of work.


You've seen the contracts that people receive.  They say you're employed to deliver this many lectures, this many tutorials, this many hours of other duties and those discrete pieces of work have to be done.  The time and place of the lecture or tutorial may be fixed, but the time and place of the performance of all other work, is highly discretionary and not prescribed generally speaking in the contracts.


The employers concede that they do not currently pay for the time spent either doing policy familiarisation activities or discipline and professional currency maintenance and development.  The exception to that is a small amount of time that it paid for staff to attend induction and the evidence shows that the time involved is relatively brief and that the induction programs deal with many matters other than policy familiarisation and that they do not deal with discipline and professional currency at all.


In relation to policy familiarisation, our claim of course, is that time that is paid in induction would be deduction from any entitlement otherwise payable for time spent in policy familiarisation.  But with the exception of that very limited exception of paid induction, the employer's evidence was that they do not currently pay their casual staff for time spent in policy familiarisation and they do not currently pay their casual staff for time spent in professional currency and discipline currency.


The casual witnesses say that they are not currently paid for these activities and that there is no capacity for them to claim it.  We say amending the award to introduce a specific payment is appropriately directed to ensure a fair safety net.


The first question is are these two activities, work?  In relation to policy, we say the employers can't resile from their own documents which make knowledge of and compliance with policy a contractual term for casual academics.  Sometimes that requirement is a two-step process.  The contract of employment may refer only to a very limited number of policies, but those include generally a code of conduct which itself points to the full breadth of the university's policy suite.  Sometimes the full breadth of policy, knowledge and compliance is directly stated in the contract.


We do not say that this claim rests on the view that anyone, possibly even the policy manager of the university would read the full breadth of a university's policies.  However, we say that the breadth of policies that casual academic staff are required contractually to know and comply with, is broader than simply a few generic policies about respectful conduct or anti-discrimination.  It goes to a wide range of policies that are directly related to the work that they do and the witnesses have talked about this.


It goes to extensive policies that relate to teaching and assessment.  It goes to extensive policies that relate to particular aspects of health and safety that may arise for example, in a chemistry laboratory or on a field excursion.  It goes to dealing with student conduct; dealing with plagiarism.  There are a wide range of policies, sometimes that people can read once off, and have a grasp of, and some that need to be consulted whenever an issue arises because every instance of student misconduct or of plagiarism is different from every other.


The evidence of every witness who was involved in what you might call chalkface academic work, either as casuals or as supervisors of casuals, is that there is a much wider range of policies relevant to the work than those touched on at inductions.  The evidence was consistent that it is more than 10 hours work per new engagement.


We say the employers can't rely on the argument that policy familiarisation work is done prior to commencing employment.  Full timers in this industry and casuals in other industries, are paid, and casual general staff are paid for the time that they work doing policy familiarisation.  If they're required to read and know policies, then it's assumed that they will do that during the working hours that they are paid for.


For casual academics, the working hours that they are paid for are assumed to be for specific functions and activities, not for general obligations they hold to their employer.  We say that the obligation to know and comply with policies is an obligation that can be understood to be part of the employment relationship, even if it were not expressly stated in those contractual instruments.


In relation to discipline currency and maintenance of professional currency.  The evidence of everyone involved in chalkface academic work in these proceedings.  Whether it's casuals or a supervisor of casuals, is that maintaining discipline currency, maintaining professional currency, is inherent in the nature of academic work.  It is expected and it is done.


We say that the words in the Sydney University code of conduct at MFI25, merely make express what is the case everywhere, and that says that the Sydney University code of conduct requires all staff to "maintain and develop knowledge and understanding of their area of expertise or professional field".  That is inherent in the nature of academic work.  Sydney University state it, but it doesn't need to be said.


The claim that the union has put forward is modest, given the evidence of the actual time spent by academics from a variety of disciplines in maintaining their discipline currency.  Again, full timers in this industry - - -


VICE PRESIDENT CATANZARITI:  But when you say it's modest, isn't it – it's 25 per cent premium when you exceed four hours.  For every four hours, you get one hour of face-to-face teaching.  It's hardly – with some carve-outs.  The way it's drafted.  Modest is a loose term.  With a cap at 40 hours.


MS GALE:  I accept that modesty is in the eye of the beholder, however - - -


VICE PRESIDENT CATANZARITI:  It would come at significant cost to an employer to introduce this clause.


MS GALE:  However, there is a cap and also it's not an hour for every four hours worked, it's an hour for every four hours of delivery.


VICE PRESIDENT CATANZARITI:  Of delivery of lectures or tutorials.


MS GALE:  Each of which itself a number of hours' work.


VICE PRESIDENT CATANZARITI:  And some of those tutorials – some of the lectures might in fact be repeat lectures.


MS GALE:  Yes.


VICE PRESIDENT CATANZARITI:  So there's no actual extra work being required in that sense.  They're just delivering the same lecture four times, but for every time that's done, they're still getting one hour.


MS GALE:  Yes, that is true.  We have not proposed an exclusion for repeat lectures and tutorials.


VICE PRESIDENT CATANZARITI:  Clauses drafted also, is not simple in this sense that some of the carve-outs require some fairly detailed record keeping.  For example, for what is in fact staff development, there will be an argument about what that is.  What is a conference?  How you deduct that back.  So, if they're paid to go to a conference and the conference is a 20-hour conference, they won't get recognition for discipline currency, but presumably, they won't lose the whole of the 40 hours for the year by attending that.


MS GALE:  It would count after hours.


VICE PRESIDENT CATANZARITI:  Let's assume the employer pays for a conference which is a three-day conference, which occupies 24 hours.  Are you saying there's a deduction – and say they're using the formula, and I'm very rough with the formula, say they're only – the formula would trigger based on the number of hours for the whole year under lectures and tutorials, they would end up doing less than say 100 hours, right.  I'll use 80 hours because it works better.  Would they get nothing then for discipline currency, because they've attended a conference?


MS GALE:  Yes, that's right.


VICE PRESIDENT CATANZARITI:  Somebody is going to be keeping all these records of how this all works and then while a conference is easy because it's an external conference, you'll get to an argument as to what is a staff development – is a meeting where they sit round and their for an hour, where they're discussing the discipline, they're not teaching, they're not a tutorial, but they're being paid for that hour ordinarily, does that count in relation to the way the clause is structured?  Or is that another one you knock off?  I just see the way this is drafted, scope for debate.


MS GALE:  Your Honour, we submit that paid staff development is an understood concept in the industry.  It doesn't impose significant regulatory burden on the employers.  The evidence for example - - -


VICE PRESIDENT CATANZARITI:  Well, except that there's going to be a lot more record keeping under clause B(2), to make sure that there's no double counting on your clause.


MS GALE:  The evidence of Ms Thomas of Wollongong University in relation to their paid induction program, for example, was that it was of no difficulty at all, for them to simply add a code to their payroll system to track when people - - -


VICE PRESIDENT CATANZARITI:  I think paid induction is, with respect, quite different to this clause.  This is about – anyway – it's a matter for you to put up, but it is a very different thing to paid induction.


MS GALE:  This clause is very different to paid induction, yes.  My point is that the - - -


VICE PRESIDENT CATANZARITI:  Very different – paid induction will clearly say this is induction.  In this clause, the say this is structured from my understanding, is that you you'll require records to be kept in relation to when payment is occurring to attend a staff time activity, an actual professional conference or like activities.  So, that would have to be some detailed records and then you'll have to off-set that in relation to the rest of the clause.


MS GALE:  Your Honour, I don't accept that it's a complex record-keeping exercise, in that the way that casual academic rates of pay are structured in university payroll systems at the moment, enables every activity to be allocated a code, and if payment is for attending a conference, or payment is for attending a staff development activity, then all it needs is a code in the system.


VICE PRESIDENT CATANZARITI:  Yes, but they record the hours of a conference.


MS GALE:  Yes, they record the hours that are paid for that activity, that's the hours that are paid for it.


VICE PRESIDENT CATANZARITI:  The hours that are paid.


MS GALE:  That are deductable for hours that would otherwise be paid.


VICE PRESIDENT CATANZARITI:  If there's travel time, they don't get paid for that, presumably?


MS GALE:  Well generally, at the moment, people don't get paid for attending conferences at all.  They may have their registration costs met, but if staff are paid full time - - -


VICE PRESIDENT CATANZARITI:  But a full-time person is a different category.  We're talking about these people here are different, these are the casuals, right?


MS GALE:  Yes.


VICE PRESIDENT CATANZARITI:  We've got to focus on how it works with them.


MS GALE:  Yes.


VICE PRESIDENT CATANZARITI:  And how this clause triggers them.


MS GALE:  I'm simply saying that at the moment, by and large, if a casual attends a conference in their field, they will not be paid for the time involved at all.  But, if they were so paid for that time, then we would accept that that was a reasonable offset against the time they spend generally engaged in professional and discipline currency work, because that is generally the nature of attending a conference, is for the purpose of discipline currency.


Given what we're proposing to offset is the time that is paid for in those activities, all it would require a code.  We say the evidence of Ms Thomas shows that entering a code for a specific activity is easy and no great impost on the university.  They did so in relation to attendance at academic induction and her evidence was that it was a very simple administrative step to add that code to their system.  We say this is the same.


We say, once again, that the evidence is clear that full timers in this industry are paid for the time they spend I this work.  The Australian Catholic University Workload policy for example, allows between 100 and 160 hours within a full-time workload allocation for time spent maintaining discipline currency.  That's, I have to say, on top of time that is allocated in that same workload policy, for example, for the preparation of lectures and tutorials.


What is happening in the employment of casual academics, is two things.  One is that there are people who come in on a one-off guest lecture arrangement.  They come in, they're expected to know their stuff, they give their lecture.  They might even give two or three and they leave.  We are not proposing any obligation in relation to that cohort of casual academic employment.


The other substantial group is people who are present to deliver a course of lectures or tutorials who are employed to be an ongoing interface with students in the education process.  We say that with respect to that cohort, universities are employing professional academics.  A consequence, is that those people will, in the course of their employment, exercise professional judgment about what they need to do to maintain their professional and discipline currency, in the same way as full time academics will do.


The employer doesn't and cannot in a practical sense, say you need to do this thing and this thing, to maintain your discipline currency.  It is a question of the academic's expert professional judgment about their own discipline, the state of their own knowledge, developments in their discipline.  It's a thing this is very resistant, we say, to a model of remuneration based on timesheets.  That if it's a claim and invoice process about a particular reading of particular new cases or articles or analysis, then it would become, indeed, a very large administrative burden for the employers.


What we have proposed instead, is a minimalist payment, and we do say it is modest, given the evidence about the actual time that is spent in this work.  We say the work should be paid.  The approach to payment, we say, can legitimately be consistent with the form of other causal payments, which is to make assumptions about the likely time involved.  All of the casual rates of pay are based on swings and roundabouts.


Some people may spend considerably more time than they are notionally paid for in preparing a lecture, for example.  There maybe even one or two people in the world who can manage it in less than the allocated hour, but certainly there's ample evidence that many people spend more time than they are paid for, but that it's an accepted practice in the industry, that the casual rates are a fair estimate – or a fair minimalist estimate of the time involved.  We say that's what we're proposing in this case.


We say that the work is inherent in the requirement of the job.  One cannot be a professional academic without maintaining discipline currency.  It's disingenuous to suggest that a university would want someone to be current in their discipline at the beginning of semester and not current in their discipline by mid-semester.  We know it is the case, and there was evidence from several witnesses that if that happened that person would never be re-employed.


That what people are looking for on appointment, is not only currency in the discipline, but the attitude of a professional academic that they are someone who will maintain their currency in the discipline.


DEPUTY PRESIDENT KOVACIC:  But how does that scenario differ perhaps from any other profession or any other occupation where there might be skills involved, Ms Gale?


MS GALE:  It differs in this sense, that in another profession or occupation, if you're employed for a period of time, you are generally employed for the commencement of that engagement to the end, and if during that time, some of the hours of employment are spent in maintaining your professional currency or your discipline currency, then you are paid for it.  It's during your hours of employment.


For a self-employed professional, they build that into their rates, presumably.  But for an employee, which is what we're talking about, for someone who works casually in other professional fields, then they are employed by the day, by the week.  They're not employed on this sort of piece work assumption.  Because this pay is effectively a piece work system for casual academics, if the piece is not described, it's not paid.  That's what's different from other areas of professional work.


VICE PRESIDENT CATANZARITI:  I haven't looked at the teacher's awards, but they have a lot of casual teachers.  Are they given – do you know whether they're given an allowance for this sort of arrangement, because they have to maintain their discipline, presumably?


MS GALE:  They do, they are – can I take that on notice, your Honour, and answer tomorrow.  I do know that casual teachers are employed by the day and not by the class, for example.


VICE PRESIDENT CATANZARITI:  The other thing, is that in relation to B(iv), you put an obligation, the way that the clause is structured, if some academics do teach the same course, or similar courses, at more than one campus.  Certainly, to my knowledge, that happens.  You're asking the employer, the way that clause is drafted, they might ask for substantiation.  Well, some employers might not even know what they're doing in their .3 or .4 somewhere else.  Why wouldn't that be a clause that was a mandatory clause, if we're going to go with it, that if you are working somewhere else, the employee should actually be the one who is responsible to provide that material.


MS GALE:  That would be reasonable, your Honour.


We had envisaged that universities would add a small signature box to those standard contract appointments for casual staff, which would simply ask the person to attest to that question.  However, the reverse onus you propose is another simple way to approach it.


Again, we say that there is a hole in the safety net, but it's clear from the evidence that this work is being done, it's not currently being paid for.  That the union has put forward a model for fixing – for plugging that hole in the safety net, shifting it to a point where it becomes a fair safety net for these staff.


Again, we say that if the Bench is not attracted by the detail of the NTEU model, we still say that there is an obligation to do something to address this issue and ensure that payment is made.  We say that the true position of the employers in these proceedings in relation to this question, is that they know that this work is being done.  They know that casual academics will maintain their discipline currency.


They know that casual academics will spend the time necessary to learn and maintain their familiarity with university policies.  They know that people who are required to maintain a professional registration, for example, for the particular field in which they teach, will attend the professional activities and CPD points, or whatever they happen to be, in their own time and at their own expense.


We say that the employers are quite happy for all of this work to be done for free and that they have been getting the benefit of that unpaid work for many years and are seeking to maintain that situation.


I think we're now moving to the submissions in relation to academic – sorry, in relation to the academic classification structure and the words in relation to academic promotion.  For that I will pass over to Mr McAlpine.


MR RUSKIN:  Thank you, your Honours, Commissioner.  We say this matter is not very complex and we actually say - that I think, on my review, that the actual evidence in relation to it is not very much contested, I think.  Starting at a question of principle, we say the system of modern awards provides for minimum wages or salaries for each of many classifications across a number of industries and occupations.


Each of these bears a relativity to other rates in the award, based on work value.  As far as I know from the earlier processes of award fixing, at least one rate in each award is fixed by a relativity to the trade rate in the former Metals Award, either directly or indirectly.


Unsurprisingly, awards provide for different rates of pay based on work value.  The existence of such differentials on this basis is necessary to the fairness of those awards and to those rates.  We have section 284, which deals with the maintenance of a fair safety net of minimum wages, and we have section 156 where work value informs the basis on which adjustments to rates can be made in award reviews.  We say the whole concept of minimum award wages means that there must be an enforceable minimum rate for each classification of employee under the award, to which that employee is entitled as a question of law.


Now, that sounds simple, but often it's not in the real world of industrial relations.  There's often a dispute about what the employee's duties are or whether the work of those particular duties fall within this or that classification.  Certainly, in higher education, we have such disputes regularly, particularly in relation to general staff.


However, while the work performed or contracted for may be a decision of the employer, the classification of that work, we say, is an objective fact based on objective considerations.  Put in an over simplified form, the employer gets to decide what the duties are, but the classification is an objective fact that arises from that.  It couldn't possibly be a decision for the employer – obviously, it is in an administrative sense, the employer has to decide what classification they're going to pay, but it can't be ultimately a decision for the employer, otherwise all the classifications above the lowest rate in the award would, in effect, be over award payments, at the discretion of the employer.


Therefore, for example, the terms of a contract of employment, while they'll carry much weight, can never be absolutely determinative of the classification of an employee.  It's an essential part, generally speaking of a system of fair minimum wages that an employee is entitled to dispute his or her classification.  To say no, I am a hospitality worker grade III, that's what you're asking me to do, that's what I'm doing and you're paying me as a hospitality worker grade II, or whatever the example might be.


The right to dispute a classification, of course, is not the right to be reclassified.  Nor is it the right to career progression.  The modern award systems don't provide a right to career progression.  We're not arguing our case in this, on the basis of that.  It's merely the right to be paid the correct minimum rate for the work being performed.  Something like this is broadly speaking, been the situation of Australian minimum rates awards for the best part of a century.


My grandfather was rather surprised back in 1963 when I asked him what margins were.  I said they were always talking on the radio about margins, what are they?  He thought I was talking about the sides of a paper, but I was actually talking about the constant cases in the Commission about margins.


But we'll turn now to the Academic Award.  The Award is very unusual, given what I've just described.  The Academic Award deprives the employee of the right, as an employee, to dispute his or her classifications, once he or she is appointed.  Even more unusually, this situation has prevailed because of the consent of the industrial parties to the interstate industrial dispute upon which these provisions were founded.


Everything about this provision and its history tells us that the reason an employee can't apply for reclassification, is that the appropriate work value of the employee should be determined by peer-based academic promotion.  That remains the position of the NTEU.  We have no problem with the determination of work value and the appropriate classification under the award, being determined by promotion.


It's very important the Commission understand in this context, that promotion is not some privilege extended by employers to employees.  It is the means by which appropriate minimum wages are determined under the Award, other than on an appointment.  Unlike some academic systems in North America, promotion does not change the type of employment.  In many of the North American systems, the act of promotion to Professor, confers tenure which, prior to that promotion, the employee doesn't have.


In our system, promotion is simply a change in classification.  If I am fixed term and I am promoted, I am still fixed term.  It doesn't change anything else about my employment.  It simply changes my classification.


In that context, we say promotion - to an ordinary observer, promotion could be misconceived as some sort of privilege, like for example, probably being appointed as a Dean or something else.  It's not; it's the means by which the classification is determined under the award.  It's not explicitly stated, but that is the unstated assumption that's in the award.


Under the modern award, the modern award as it now operates, is an exhaustive and complete set of rights in relation to the classification of employees.  There's no other rights that people have.  So, whatever rights they have to be employed in the correct classification, are only found in the award.  Under the modern award, an employer could decide not to conduct a system of promotion at all, or could arbitrarily exclude certain employees, perhaps those with less labour market power, from the opportunity to apply for promotion.


If this were to occur, an employee who'd been directed to perform work at a higher level, than that which they had contracted to perform and who had done so for some time, would have no way of securing the rate of pay which corresponds to the work value and classification appropriate to that work.  I must emphasise again, that the right to seek reclassification is not the same as the right to be reclassified.


I know as a union official, many people seek to be reclassified and very few of them succeed.  It's simply a right to have the matter considered.  It's simply a right not to have a statutory bar against the matter being considered if you are denied the opportunity of promotion.


There will be many circumstances why the employer, and indeed, any Tribunal would legitimately give short shrift to a request for reclassification.  That would be a question of merit and circumstances of the type that are dealt with in other awards all the time.  When people say, well we think this person is a whatever, or we think this group of people should be paid in this classification, not that classification.


It's been suggested that the Commission itself would have to assess academic standing, that if employees could dispute their classification, the Commission would have to use Ms Gale and Ms Pugsley's earlier thing – would have to read up on Camus and Sartre.  I don't think the pay rates of Commissioners are high enough for that – and somehow become an academic expert on Camus so that they could decide whether this person should be paid in a higher classification.


The settlement of a dispute under the dispute settling procedures under the award, for a person who's been denied access to a promotion system, the Commission could – adverse to the employee, the Commission could decide that the employee completely misconceives themselves and no assessment needs to be made.  That they misunderstand the nature of what they're being asked to do, that they've only been engaged to carry out certain tasks and they are going well beyond those tasks and beyond the requirements that they've been given by the employer, and that on that basis, there's no case really to answer.


There could be some circumstances where the Commission or the employer might say well, actually, we do need to assess the academic standing of the employee given what the minimum standards for academic levels say.  And for example, the Commission could direct the employer to appoint a panel of academic peers appropriately qualified to assess the merits of the dispute and to report to the university, for example.  That might be a settlement of a dispute about the classification of an academic.  I'm saying all this on the basis that we don't want this.  We want academic promotion.


The AHEIA suggests that it's nonsense to suggest that employers would abandon their academic promotion schemes.  If that's actually the case, they should actually have no problem with the NTEU's proposal.  The NTEU's proposal is simply directed at making the scheme of the award, like every other award, into a system whereby employees can secure the correct classification according to the work value principles set out in the classification and salary structure.


We say, if the employer runs a promotion system, that's fine.  There's enormous latitude and autonomy for the employers in how they run their promotion systems.  They are different as between different universities.  Our view is that they all run for most employees, and in some cases, for all employees, a promotion system based upon academic merit.  We don't have an argument with that.


We just say that for the modern award to provide a guaranteed set of enforceable terms and conditions, it must be, that if the employer says no, sorry Fred, you can't apply for promotion, irrespective of the work you're performing, then the employee has to have another alternative.  Not a right to reclassification, not a right to career progression, simply the right to secure payment in the correct classification.  That's all our claim seems to do.


A system which allows employees unilaterally to deprive an employee or indeed all of their employees of the right to be correctly classified and then has a statutory bar in the award saying, and you can't dispute this, can't be providing a guaranteed safety net affair, relevant and enforceable minimum terms and conditions, as set out in the objects of the Act.


I just very briefly address the question of funding.  Vice President Catanzariti raised the question of, well what if a person is employed from an external funding source that corresponds to a particular classification.  Now, that's a legitimate management consideration and we would say that that means that if the employer wants to say that that person can't apply for promotion, and only some do, only some do.  Most universities allow such a person to apply for a promotion based on academic merit, but if they want to say no, you can't apply for a promotion, then what we're proposing allows them to do that, allows them to say I'm sorry, you're employed as a level A research assistant and we're not going to let you apply for a promotion.


Then if they back that up by saying, and all we want you to do is work at this level, then while the employee can dispute the classification, they're not going to have any basis to do so.  But if, for example, they said well you're externally funded and you can't apply for a promotion and this is what we want you to do, but then six months later, they ask them to do great amounts of additional work at a higher level and they did that for another six months, then we say that that person, irrespective of funding source, that person should say, hang on, you've changed my job.


You told me I was a research assistant and now you're wanting to coordinate this whole research project and mentor other research assistants, I say I'm not appropriately classified. That's a matter within the employer's choice. They control the business.  We say, in those circumstances, that person should be able to have their claim assessed on its merits, no more than that, rather than there being a statutory bar.  That's all we're going to say on that point.


Unless the Commission has any questions.


Now I'm going to speak briefly about part E which is about general staff hours of work and the three proposals that we have in relation to those.  The first is about the drafting of clause 21.  We say most importantly, the term 'spread of hours' is not defined or not necessarily not defined, it's not clear, let's just say what 'spread of hours' actually means.


I suspect many people wouldn't know what that means and we're also in line with a number of other awards, I think we're saying that the ordinary hours of work should be defined as maximum ordinary hours.  We don't think much turns on that and we don't propose to address that.  We think the claim is meritorious.,


The second part of the proposal arises from discussions amongst our members in the context of the overall claim.  That is in relation to clause 23.2 and we're proposing that certain types of work that are performed, particularly discontinuous with ordinary hours of duty, it should be clear that those don't attract an overtime payment.  Under the award, if you're recalled to duty, you're entitled, I think, to a minimum of two hours pay at the appropriate overtime rate.


Recalled to duty used to mean getting a phone call and being told that you need to come into the office to do X, Y or Z.  The concept of recalled to duty is now more fluid, I the sense that people get phoned up and asked to send documents or they get phoned up and they get asked to go in and explain to the relevant academic staff member why they can't log into their email or whatever it is.  We've proposed a limitation on the payment of overtime, which commences at level 6, which we say is a sort of middle level of the classification structure whereby there'd be a limitation on people being entitled to three hours of pay, because somebody rang them up and required them to perform work out of ordinary hours.


We think that should be hedged around in the way we've suggested to make sure that it's not sort of regular and it is actually voluntary.  I think if you're actually directed to do that work in the strict sense, then you probably should get the overtime.  But we've proposed that form of words.  We thought our members, in discussing it as a package thought that that was a fair concession, given the nature of the change of work in the industry.


The employers have rejected that.  So, if the employers have rejected it, we're surprised that they rejected it.  They didn't even seem particularly interested in discussing it.  We're not pressing it that hard, but we have to admit, we think that it's a fair adjustment to the safety net.


I won't talk anymore about those two claims unless the Commission has any questions about either of them.  The remaining submissions will go to the other change sought, the change to clause 23(2) which is essentially requiring that employers take reasonable steps to ensure that people are not working uncompensated overtime.


We say this is necessary to achieve the modern award objective and we say it's clearly within the Commission's jurisdiction under section 139.  We say the proposed words are about overtime or they're about arrangements when work is performed or they're incidental to the clause on overtime and necessary for it to operate in a practical way.  We don't think there are any serious jurisdictional questions about the capacity of the Commission to put the words sought in there, so I certainly wasn't proposing to address that in any detail.


We say whether a provision is necessary to achieve the modern award objective, it's a curious form of words, because on the one hand it says necessary, and then it talks about a fair minimum safety net, and then taking into account various things.  It does make logical sense, but it needs to be carefully and practically looked at.


We say in balancing the judgment about our claim, the Commission has to look at what is the theoretical mischief, that is, if this is happening, would this be a serious thing.  We say, if uncompensated overtime is happening, then that would be a serious thing.  Secondly, we say, looking at the things listed in section 134, we would say, you have to look at the cost or the downside of curing whatever that theoretical problem might be.  What's the regulatory burden; what's the cost of doing something about it; what's the downside, generally speaking.


The third thing, is that you have to look at the evidence not that the mischief does really exist, that it's not just a theoretical mischief that there is real evidence is that there is a real problem.  We say, as I said, the potential mischief, if people are not being paid for the work that they perform, that's necessary and useful for their employer's business, that's a serious problem.  We say the cost of burden of the proposed regulation is very very low.


I mean, what we are asking for is that the employer take reasonable steps, not even all reasonable steps to ensure that employees are not working uncompensated overtime.  We say the combination of the two previous points means that there needs to be some real evidence that there is some real problem to be addressed and that it's not merely theoretical.


We say, given the seriousness of the issue, if it exists and the relatively low cost of the burden that we're proposing, we say the Commission needs to be reasonably satisfied that there is a real problem that affects a significant number of people.  We say, that's really as high a bar as you need to establish and we say that we've readily established that threshold.


We're not suggesting that the evidence discloses that 50 per cent of people are working uncompensated overtime.  But if the Commission could draw the conclusion that a significant number, 5, 10, 15 per cent of people were working uncompensated overtime, then I think it would be reasonable to say that what we're proposing is necessary, taking into the matters in 134(1).


We say, that the evidence disclosed in general terms is the following, that some employers have systems that are vague, unclear or inefficient as to the arrangements for recording or discharging time off in lieu.  I think it's fair to say that where an arrangement has been made for paid overtime, we don't have – I don't think the evidence disclosed that there was any real problem.  If an employee was asked to do paid overtime, they made a claim, they got paid.  I don't think that's the problem.  We say, the systems they have in relation to time off in lieu are not of a standard of robustness that they should be.


We say, the evidence disclosed that employees work uncompensated overtime in order to meet the requirements of their employer and they don't claim it, or they don't receive it.  It doesn't really matter which one that is.  We say, that while employers have policies and procedures about time off in lieu and overtime, as far as we can see none of them, for example, employees should not work out of hours without claiming overtime or time off in lieu.  They are overwhelmingly silent on that point, which we say is quite convenient.


We say, that in addition to the specific witness evidence about people's experience, including the evidence of former senior managers, such as Dr Hamel-Green, the evidence of Professor Strachan and the evidence of the survey she conducted indicated and it has to be acknowledged, that the question is not directly the question that the Commission needs to have answered, that's to be acknowledged.  But, the evidence of her research was, that 67 per cent of employees said that they received no compensation for their additional hours, including about one third of people at the lower level classifications, who are clearly entitled to paid overtime.  That evidence is summarised at E11 to E22 of our submissions of 3 February.


Our submissions of a year ago, also made the point in a series of factual contentions, which wasn't challenged by any of the evidence, or any of the submissions, and that was as follows.  "The nature of much general staff work is specialised or geographically or organisationally isolated.  For a large proportion of employees, the work is not performed in close proximity to, or in some cases, even at the same time as the employee's supervisor and work or working time is not closely monitored."


That is in the nature of this industry.  Dr Hamel-Green said, the fact that academics all worked unregulated hours and at different times and came and went, created a particular culture.  So, universities are different from a factory or a shop or even a call centre.  The business is open for business, most universities are open for business from about seven in the morning until 10 or 11 at night.  It's not like there's a – if you stand at a university car park at 5 o'clock you don't get overrun with everybody leaving the place.


They don't have – the fact that somebody is sitting in their office at 7 o'clock at night preparing excel spreadsheets is not a remarkable thing.  There is nothing about the nature of the work that constrains the performance of work at particular times/


None of the employer witnesses – I think this is correct I reviewed it again.  None of the employer witnesses actually said that uncompensated hours were not being worked, or even that it wasn't a problem.  Some of them said they weren't aware of it, but nobody actually said on the basis of any analysis, experience, that uncompensated hours were not being worked.  Their evidence generally appealed to the fact that the employer had policies and that employees could claim things if they wanted to.


We say, to put this at its lowest, the Commission is entitled to draw the conclusion that the problems of employees working unpaid overtime, is significant enough to warrant consideration in this matter.  We say the evidence demonstrated there was an actual problem, that there is a significant number of people who are affected by the problem and that there is a real and potential cost for them.  The real cost for them is great.


We say, against this, we have to consider the regulatory burden.  We say, there was really no suggestion that in any cash sense, the cost of this would be very much above zero – sorry, that it need be above zero.  NTEU has suggested a list of possible ways in which employers could comply with a requirement for reasonable steps.  We listed those last year.  We said they include, and it's not suggested there or here that the employer would have to do all of these.  These are the types of things which we said could be imagined, but we didn't want to be excessively proscriptive.


We said the adoption and promotion of appropriate policies.  A university could have a policy saying that employees have to report to their supervisor when they're working out of hours or working in excess of the ordinary hours of work in the award.  I can't imagine that that's a very expensive or difficult or heavy regulatory burden.


If a university adopted such a policy, and sent an email to all its employees saying we've adopted a new policy.  You are required to tell your supervisor if you are working out of hours, or in excess of the ordinary hours of work specified in the award.


DEPUTY PRESIDENT KOVACIC:  Mr McAlpine why do you need an award provision to actually make that happen?


MR McALPINE:  Because otherwise it doesn't.


DEPUTY PRESIDENT KOVACIC:  Why?  What prevents it from occurring at the moment?


MR McALPINE:  The employers set the policy; we don't.


DEPUTY PRESIDENT KOVACIC:  What precludes an employee from raising with his or her supervisor, I have concerns about my workload at the moment?


MR McALPINE:  Well, we would say in theory, nothing does.  But in the context of a safety net award, if the employer knew or ought to know that the person is working uncompensated overtime, then the obligation is on the employer, not the employee, to do something about that.  It's not – for example, if I'm employed as a casual employee and the employer says this is the claim form you need to fill in to get paid.  Now, I accept that I'm under some sort of obligation to fill in that claim form and send in my claim for my casual work.


But in the end, if I kept working for six months, and I never put in a claim form, the employer would – in the context of a safety net, the employer has to say now look, you have to do this, because I'm required to pay you.  The employer can't just pretend by adopting a particular policy, that something isn't going on.


I agree, in a conversation sense, I agree with you, the employee has an obligation to raise it, but the employer has an obligation to make sure it is raised.  That's my point.  The distinction is, the employer should be under an obligation to make sure that if people are working unpaid overtime on the weekends at home, they should have to tell their employer.  I can't take it much further than that, I think.


DEPUTY PRESIDENT KOVACIC:  How do you enforce that?


MR McALPINE:  The enforcement would be of the type which is found in the casual conversion clause, which says the employer must take reasonable steps from time to time to inform casual general staff employees of their entitlement to apply for conversion.  So, every now and then at some universities, we've gone to the university and said we don't think you're doing this.  They've said, okay, yes fair enough.  We will make it a policy to send an email every six months to all our casual employees reminding them that under the enterprise agreement they may have a right to apply for a conversion and here's a link if they're interested.


We think that's reasonable steps.  We're not proposing that the union should be able to prosecute the university because Mary Smith worked uncompensated overtime.  That was what we were – that was one of our initial thoughts in considering this, but we thought no, no, no.  It's much fairer to the employer, it's much fairer and it's a much lighter regulatory burden, simply to say that the employer should, for example, tell its employees that they're not to work uncompensated overtime.  That would be a good start.


We say that's necessary for the safety net to operate in a practical way.  If people are working – if people, either because they're too scared or they're worried that complaining about their workload will mean that they're seen as a poor performer, which they may well be.  It may well be that they're working six hours a week at home on Saturday because they're not doing their job properly, but that's not a reason why an employer shouldn't be informed of that fact.


We say, the adoption and promotion of appropriate policies, clear and direct instructions to supervisors and employees, and we've listed a number of other things.  I mean, I think those are the most obvious ones, but we said the reorganisation or work flows, the recording of time worked.  It could be that the university have a policy simply saying each employee should record for their own purposes, the time they worked, so that if there is an enquiry about whether they've got some entitlement at some future time, there's a record being kept.  Some organisations do that.  Everybody just keeps a record in their diary of how many hours they worked.


There's various things, for example, training for supervisors.  You could say, it's your job, to make sure that people aren't working uncompensated overtime.  That's another step.  But I think the adoption and promotion of appropriate policies is enough.


I'm just reminded, Mr Giles set out in his witness statement, some of the reasons why people don't claim for overtime.  I think a number of the other witnesses did as well.  In brief the evidence from the employer witnesses themselves, show that there was a problem.  No employer witness said that there wasn't unpaid overtime.


The last thing I wanted to deal with, I think is, the question – it's been put in various ways that this is somehow an enforcement matter.  We say the starting point is the text of the award.  The award says an employee will be paid overtime for all authorised work performed outside or in excess of the ordinary or rostered hours of work as follows, and then there's a list of rates.


The key words there are 'authorised work'.  Taking an incorrect or a literalist approach, and one which fortunately has never had any currency within our industry, one could simply say, provided the performance of the work was authorised, there is no requirement that its performance outside or in excess of the normal hours has to be separately authorised.


This view would hold that if I'm authorised to reshelve books in the university library, that's authorised work.  If I come in on Sunday and do it for eight hours, it's authorised work, and it's been performed outside the ordinary hours, therefore I'm entitled to overtime.  We say that's not correct.  We say, that the correct interpretation is a common sense non-absurd purposive approach and that the performance of the work outside or in excess of the ordinary hours that has to be authorised.  It just can't be that the work is authorised, it's performance outside ordinary hours has to be authorised.


If an employee works additional hours to keep the lab classes running and the employer has not authorised the working of those additional hours, either implicitly or explicitly, there is no entitlement to overtime under the award.  We're not proposing to change that.  We're not proposing to change that.


All the employer witnesses asked the question, agreed that is a question of fairness.  The work in these circumstances, the work should either be paid for or not done.  That's the simple proposition and I think two or three of the employer witnesses, I put that to them as a question of fairness.  They said yes, that's right.  You either got to pay for the work, or it's not going to be performed.  And when I say pay, I'm including time off in lieu and other things.


The current safety net provides an arrangement which in this industry is a problem.  There is a loophole which operates to the employer's advantage and the employee's disadvantage.  The consequence of that loophole cannot be entirely eliminated given the nature of the work in the industry.  We accept that, but we say that's not a reason to not try to close that loophole a little tighter.


That's all I wanted to say about that one.


MS GALE:  Very briefly in relation to the remainder of the NTEU claims.  The NTEU is content to rest on our written submissions.  We say, only the following additional points.


In relation to part J, the ICT allowance.  It seems to be the view that because many people have information technology equipment, they have their own phones, their own computers at home, they have tablet devices and perhaps even smart fridges, therefore the fact that they are using that equipment and maintaining that equipment to some extent for the performance of work, is irrelevant.


We say it's not irrelevant.  That is a central question in relation to how allowances should be structured.  A matter does not have to be solely maintained for the purpose of work, for an allowance to be in relation to its work-related use, to be appropriate.  An obvious example is vehicle allowance.  Someone uses their personal vehicle for work, they are entitled to claim some allowance in respect of the expenses incurred.  The fact that they would have a car anyway, is not a relevant question.


The suggestion is made that the award is bumping along very well as it is without this allowance in it, that it's therefore not necessary.  We say, that the question is whether it is necessary to have a fair safety net in a circumstance where there is evidence that these expenses are incurred by employees, they are not recompensed currently by employers and the proposition that well, people can claim it on their tax, is fine for people who can claim it on their tax.  That covers generally half of the cost, not the full cost and for many employees, of course they can't claim it on their tax because their income doesn't reach a sufficient threshold that they pay tax.


The issues associated with whether an allowance should be provided, we say, based on whether there's evidence that the expense is widely incurred, that it's incurred in the course of employment and that it ought to be recompensed as a work-related expense.  We say, all of that evidence is there.


In relation to part K which is changing the word 'context' to 'content'.  We say we've established very clearly and we've shown the history of how that typographical error came to be in the award.  We note that the AHEIA who were participants in the original proceedings which gave rise to the clause in a predecessor award and who were participants to the wording proposed by the parties, which was content, which somehow got changed into context in the process of the publishing of the award.


The AHEIA have made no submissions on this point.  The Group of Eight Universities oppose it because they say that the change is not necessary.  We say that is not the test.  It is obviously open to the Commission to correct a typographical error.  On the Go8's submission if title of the award had been incorrectly published as the Hodder Education Award, they're suggesting that unless that caused some practical difficulty in the field that it would not be open to the Commission actually correct a typographical error and make it the Higher Education Award.


We say that's nonsense.  This is all this claim is. It's a long-standing typographical error in the award; it should be corrected.  There is no reason legislatively or policy against making that correction.


Unless the Commission has questions, we would make no further submissions at this point.


VICE PRESIDENT CATANZARITI:  Thank you.  We'll take the luncheon adjournment.

LUNCHEON ADJOURNMENT                                                         [12.45 PM]

RESUMED                                                                                               [2.07 PM]




MR PILL:  Thank you, your Honour.  Your Honours, Commissioner, this is obviously a review of two higher education awards and in my respectful submission it's important that we don't lose sight of that.  I've hardly opened the award since these proceedings commenced.


The appropriate outcome here is not wholesale change or significant change to the award, particularly of the type sought by the NTEU.  The appropriate outcome is not to impose a range of substantive additional restrictions or provisions that are matters for bargaining or matters for policy.  This isn't the appropriate vehicle to impose outcomes that are inconsistent with the relevant regulation in the sector, including as claimed and agreed by the NTEU, and that's what a number of their clauses do.


The appropriate outcome here is to address some of the technical issues with the award, to address some of the common claims, because the nature of the broader process means that we have to, and to make some of the minor changes that aren't contentious.


We say that particularly in circumstances where there are settled industrial terms, and until at least the commencement of these proceedings in 2015, in very large part supported, if not promoted, by the NTEU, and in circumstances where you don't have evidence from any employee to whom the awards actually apply.  There's no direct evidence.  There are some employees - Bond University has employees who are covered by awards.  We didn't hear any evidence from those employees, and in fact the one claim that was made by the relevant union in respect to them to extend part of the award to them was withdrawn.


Nor is there any evidence of difficulties in negotiating the enterprise agreements.  One would expect, or one could reasonably expect, that the NTEU could bring to the Commission evidence of difficulties associated - that arise from the award in negotiating enterprise agreements, and there is a dearth of that evidence.


In circumstances where the enterprise agreements - and I accept Mr McAlpine's qualification this morning about Murdoch, although it is atypical, but in circumstances where we do have enterprise agreements across the board that are marked by their length, are marked by the level of entitlements in them, and are marked by how comprehensive they are, including in relation to academic hours of work, and the NTEU, despite various attempts to badge it so, are not here asking the Commission to adopt in the award the same hours of work regulation that they have claimed and negotiated in enterprise agreements.


That difference of view about the appropriate way to deal with this has manifested itself through these proceedings.  The employer parties - on behalf of my clients we've made two claims that are based on technical arguments about interrelationship with the Act, but we haven't sought wholesale changes.  There's plenty of things the employers could have come and asked for that they haven't achieved in bargaining.


What I wanted to do was to just very quickly give you a road map of the submissions.  I will be speaking both to the opposition to the NTEU variations and then very briefly to the proposals that we've made.  Just to assist the Commission, given the volume of paper, there are two main sets of submissions.  The first set covers predominantly our opposition to the NTEU variations, but also goes to the two common claims that have been referred to this Full Bench, which is about annual leave and TOIL.


The two documents that we submit you should be paying attention to when you're considering this matter are what was part of the Go8 compendium, and in particular exhibit 5.  In our opening we handed up a compendium which is entitled "Group of Eight materials compendium index" and it includes within it - was exhibit 5, which are the submissions in reply to the NTEU proposed variations.


It included six attachments, five of which are still relevant, and they are attachment 1 which compared award wages for other employees who were in the nature of autonomous employees to varying extents, and that's relevant to the academic staff hours claim.


Attachment 2 really is no longer relevant.  It related to the NTEU claim to make various changes to the casual schedule in the academic staff award.  We were opposed on one major issue that the NTEU have now dropped, which was essentially to increase the rate for certain casual employees who were doing unit coordination.  You might recall Australian Business Ltd were interested in that issue because it had work value dimensions, and that claim has been dropped and hence we say nothing further about the more modest change to include definitions.


Attachment 3 includes a range of overtime provisions from other modern awards.  It's relevant to the general staff overtime claim and it shows manifestly that the formulation for general staff overtime in the general staff higher education award is very much in standard formulation for award terms.


Attachment 4 is still relevant.  It included all of the ICT allowance provisions that we could find in existing modern awards, and they are marked by being directed to call‑back situations or where you're directed to have a particular company phone.  We couldn't find anything in the nature of what the NTEU have now proposed.


Attachment 5 is our submissions about annual leave, and I'll briefly speak to those as part of this closing, and attachment 6 goes to the common issue which I'm short‑handing as TOIL but was about award flexibility, and I'll briefly speak to those.


So still in this first, main set of submissions, the submissions that we filed on 8 March this year, the Group of Eight Universities' final submissions in response to the NTEU claims, I'm conscious you've had them printed.  I'll therefore frame it as an offer.  We have bound versions with tabs for the relevant sections which I'm very happy to hand up and make available to you if it would assist the Commission.  If nothing else, we're assisting the forestry workers here in Victoria by killing a few trees.


I just found personally it was much easier for me to navigate this document and a number of my comments will be made to emphasise some matters in this document, including because the vast majority of what we've heard today is answered in our written submissions.


The second set of submissions goes to the variations that my clients have proposed and I intend to deal with that second.  I thought it might assist the Bench for me to follow on from the NTEU and speak in opposition to their position first, but they are predominantly set out in the submissions that we filed on 3 February, and indeed we attached a previous set of submissions to those submissions on 3 February.


COMMISSIONER JOHNS:  Sorry, Mr Pill - sorry to interrupt, but are these exactly the same as the ones I've already ‑ ‑ ‑


MR PILL:  They are.  I wasn't sure, Commissioner.


VICE PRESIDENT CATANZARITI:  I should just indicate, Mr Pill, we are going to have to adjourn at 4 today, but we'll start tomorrow at 9.30.


MR PILL:  Thank you, your Honour.  I'll come back to the second submissions.  What I want to do today is to predominantly speak to some matters in relation to the NTEU variations.  We have produced comprehensive and lengthy written submissions in response to the lengthy submissions of the NTEU, but I do think it would be of value to direct the Bench to some of the more critical matters in those submissions.


There are a couple of issues of general application that I wish to speak to and there are issues in relation to the particular claims.  I don't intend to spend the majority of my time talking to the academic hours, but I will speak briefly to a couple of the other matters as well.


I'll briefly deal with the common claims, particularly the TOIL issue, because there have been some updates in that stream that impact on the proposed orders that we say would be appropriate to be made.  Then, briefly, I only intend to spend about 15 or 20 minutes actually speaking to the employer proposals, and the way we've divvied up the time, that may even be tomorrow morning.


Can I direct your Honours and Commissioner to our submissions of 8 March?  I certainly don't intend to read them, but I do intend to direct you to some of the more critical issues.  At paragraph 8; this on page 4 towards the bottom, we have indicated what we've done in the submissions.  We have highlighted the principles.  We've provided an overview which I'll take you to in a moment.  We've identified some contextual issues that are relevant and should bear on the Commission's consideration in relation to each of the claims.


I did want to briefly highlight a couple of issues about the overall evidence and the quality and the integrity of that evidence and then art parts 6 to 16 is where we do a lot of the work in relation to each of the claims.  Given the nature of the proceeding and given the volume of the material, what we've sought to do is extract and put into tables for the Bench a lot of the evidence that goes to particular points, particularly in relation to the academic hours provisions.


Mr McAlpine addressed you very briefly on the principles.  I equally don't intend to spend a lot of time on them, but I did want to emphasise a couple of matters, because it shouldn't be glossed over, and this appears at page 6 and following, that this is a review of the existing provisions, that the historical context is applicable, that the characteristics of the employees and employers influence the determination.


Importantly, we say, the award as it was made in 2009, 2010, and it was made in the priority stage and it was made with the full involvement of Deputy President Smith who, for his sins, lived and breathed the sector for many, many years, and affirmed by the Full Bench as part of that process that it's taken to meet the modern awards objective at that time.


There's submissions on both sides about onus.  We accept that it's not really appropriate to talk about onus, but consistent with the principles it is necessary for the NTEU to demonstrate that if the higher education awards are varied in the manner that they've proposed it would only include terms to the extent necessary to achieve the modern awards objection, and we say in a number of different ways that they have failed to demonstrate that.


We've extracted briefly a quote from the Full Bench of this Commission in the Security Services Industry Award which identified again those matters but goes further:  the requirement to advanced detailed evidence of the operation of the award, the impact of the current provisions on employers and employees covered by it and the likely impact of the proposed changes.


The NTEU in a number of areas, particularly in the academic awards base have almost moved away from their clause.  We're up to about the eighth iteration of their clause 2, in their submissions, 5, High Level Principles, and in reply last Friday we got the latest simple version of the NTEU award clause.  It shouldn't detract from the test, it shouldn't detract from the principles that the Commission needs to apply here.


It is a test of necessity.  It's not one of whether it's desirable, it's not one of whether it would be good management practice, as Mr McAlpine referred to in his cross‑examination of a number of witnesses about the management of overtime.  It's not the case of whether it's moderate.  Throughout the NTEU's submissions, and we heard a little bit again today, there's almost an assumption of a benevolent approach, that the NTEU are being kind, helping the Commission out and helping the employers out, by making a number of concessions in their drafts.


It is one of necessity, and at section 2.3; this is on page 9, we've made that point and cited his Honour Tracey J at paragraph 26 that draws the obvious distinction between what's necessary and what's desirable or preferable:


That which is necessary must be done.  That which is desirable does not carry the same imperative for action.


He goes on to say that he accepted the distinction.  Reasonable minds may differ about those things, but as a starting point it's clearly a higher test and if we were making the award from scratch, would it be desirable to have that in it, would it be preferable, would it be good management practice, would it be appropriate?


We heard it today.  One thing which pervades the NTEU's position is this underlying belief that unless there's a lot of detailed prescription and almost a paternalistic view taken to the engagement between employers and employees, that it can't be a fair and relevant safety net.  It's not enough to have a clause that says if you work authorised time you get paid.  You need to have a clause that says the employer has to make sure that you don't work outside of that clause, and I'll come back to that.


COMMISSIONER JOHNS:  Mr Pill, does the requirement of necessity rise so high that it has to be that the award can't operate without it?


MR PILL:  No, because obviously the award has been operating and there are other awards that have been operating that have been varied.  It's necessary in the sense that without it it would not constitute, together with the NES, a fair and relevant safety net.  The question of what constitutes a safety net - and, sorry, a safety net of minimum terms and conditions, and that's an important point - what's relevant, what's a safety net in the context of the particular industry, may differ, and in the context of an industry where there aren't really award reliant employees the role of the safety net in that context is slightly different to industries where there is not enterprise bargaining.  We make some of those points at 2.2.


COMMISSIONER JOHNS:  But it would be relevant to bargaining.


MR PILL:  It would be relevant to bargaining both in a practical sense, that the NTEU have a history, although Mr McAlpine I think said no in response to a direct question I asked him - have a history of seeking to obviously leverage award outcomes into enterprise bargaining.


In a technical sense it's obviously relevant to the BOOT, and I guess in a third sense it's relevant to a Murdoch situation where the underlying award may come back into operation, but consistent with the preliminary issues decision, the historical context, the circumstances of the employees and the employer, are relevant to the question of what constitutes a fair and relevant safety net.


We would place some emphasis on that term "relevant".  The NTEU in their submissions appear to make the submission that relevant just means it's of interest to the employees, employees are interested in their hours of work therefore it's a relevant matter.  We submit that relevance in this context goes to the appropriateness to the particular industry and the circumstances of the employers and employees, and that's where we say, amongst other things, that the EBAs and their content can help inform what might be the relevant industrial regulation within the sector.


Mr McAlpine mentioned this morning, a little obliquely, criticism of the employers not bringing more evidence.  I think we've got enough evidence - but not bringing data about various things, and in their written submissions and in their submissions in reply they make a submission that the Commission should actually draw an adverse inference, and not only a Jones v Dunkel inference, they should actually draw an inference that it would have assisted the NTEU in their case.


That submission must be rejected.  The Group of Eight and the AHEIA have brought a number of very eminent, experienced persons to give evidence in these proceedings.  To the extent there's some suggestion that the employers are hiding data about the hours that academics work, that was directly put to them in cross‑examination about, "Do you record hours?" "Do you monitor hours?" and the answer is no.


It's not because the employers are trying to hide something or trying to avoid something, because that's not the nature of academic work, it's not the nature of the academic culture, and we've heard from multiple witnesses, and some of the strongest evidence came from the NTEU academic witnesses, how fiercely they would resist that sort of managerialistic approach.


The reason why the employers didn't bring more evidence is also because the employers are prepared to take what we consider is the appropriate approach to this award review process, which is to say it's not broken.  It's successfully underpinning bargaining.  The problems that the NTEU bring to the table aren't a direct function of the application of the award and therefore we don't really need to bring evidence about the established status quo.


So what is the Group of Eight's position?  On page 12 we have included a table - and I apologise, there are a couple of typographical errors which I've picked up, but we've included a table, and it's obviously not exhaustive and we would encourage the Commissioner and the members of the Bench to obviously read our full submissions, but we have attempted to provide a high‑level summary of why the Group of Eight say in relation to the specific claims why they're opposed.


I'll come to some of these individual ones in a moment, but we do intend to make - I will, as a matter of emphasis and to direct you to the more critical bits, identify some of these things, particularly in relation to the academic hours clause.


The last general point I wanted to make, we've set out in section 4 some general and contextual issues.  I don't believe any of those are contentious.  The one that I did just want to highlight is the fact that - and this is at 4.5 on page 22.  We accept and indeed part of our submissions are to the effect that academic employment is unique.  Indeed, there are things in the sector that are very much unique to academia and I've spoken before about the fact that sometimes we talk about employers and employees and we talk separately about academia and that you are an academic rather than you're employed as an academic.


The closest comparator we have, or my clients have, and they're increasingly competing with, is private post‑secondary education providers.  They are covered by a post‑secondary education award, and that's an award that includes academic teachers who not to the same extent but to a large extent have a degree of autonomy, and those awards, that award and also the Educational Services (Teachers) Award have an annual salary.


They don't, contrary to Ms Gale's submission this morning that all these awards provide for overtime, they don't provide for overtime.  They don't provide for TOIL.  They don't, and I'll come back to this - they don't provide a discipline currency allowance, nor do the nurses awards nor do the other awards that cover skilled casual employees.


There's no application, there's no submission, there's nothing in relation to the Educational Services (Post‑Secondary) Award to seek to impose the raft of additional regulation and restrictions that the NTEU seek to bring to bear to the higher education awards.  We say that the main relevance of that is not a "me too" claim, but there is a requirement that there be a stable award system and it does undermine the NTEU claim that these significant variations are necessary and the absence of them would mean that the award is not operating and can't operate as a fair and relevant safety net.


I don't intend to go through most of it, but I did want to make a couple of comments about the evidence generally.  We've set this out at section 5.  We make a submission that the reliability, the relevance and the probative value of much of the NTEU evidence is questionable.  The NTEU in their reply submissions have said that in support of their various claims their experts, their survey, should be accepted, should be preferred over the evidence of employer witnesses and over the evidence of Professor Wooden who gave fairly detailed evidence about the problems with the NTEU survey.


We have spent some time making submissions about the experts, and we do that at paragraph 76 and following.  Your Honours and Commissioner may remember some of the challenge that were apparent in relation to their expert reports.


Putting aside the formalities of not being signed, not identifying the question that they were answering, not identifying the material on which they were relying, not indicating that they were there giving unbiased or impartial evidence - putting aside those things, we had Dr May and Dr Junor with almost verbatim expressions of their expert opinion.


We've cited the relevant document there, compounded, unfortunately, in the case of Dr Junor by notes, handwritten notes and various other things, material, in the witness box in Sydney, and with respect, the NTEU seek to defend this in their reply submissions by making a submission that it's all okay because they considered what the NTEU had put to them and affirmed that they agreed with it.  It's hard to contemplate a more unsatisfactory purported expert evidence report than those that have been submitted by the experts, as they were put forward, of Dr May, Dr Junor and Professor Strachan.


We have acknowledged that Associate Professor Hepworth gave expert evidence and was qualified as an expert.  What we have done though, your Honours may recall that when he was in the witness box it became apparent that Associate Professor Hepworth had had other communications and received other information.


The Bench called for the email correspondence and on page 25 we have extracted some of the parts of the email that was tendered after Associate Professor Hepworth had concluded his evidence. You'll see we've underlined - the emphasis is ours.  We've underlined a number of matters that - Associate Professor Hepworth ultimately gave expert evidence about a very narrow issue, and I'm paraphrasing, which was are the questions essentially non‑biased questions in a particular part of the survey.


What he was canvassed to potentially give evidence about was the reliance that could be placed on the results to establish things that would have been relevant to this Commission, so can it actually establish the likely trends and patterns even if it doesn't prove particular percentages, how representative is the sample - and I'm over on 26 - whether it can be used, if possible to identify their actual hours of work, the conclusions that can be reasonably drawn from the qualitative responses, and at 85 I've extracted what he was ultimately asked to come and give evidence about.


Again, a very unsatisfactory state of affairs and we do make the submission that - well, can I say one more thing.  Associate Professor Hepworth came to the Commission in the context that the NTEU brought a survey and brought a report to the Commission that it relies upon.  It didn't call the author of the report, a Dr Kniest, who is an employee of the NTEU, and the Vice President, after conferring with the other members of the Bench, identified that you were unlikely to give any real weight to this survey evidence if we were not in a position to essentially cross‑examine authors of the report or there was other expert evidence about methodology and about outcome.


To this day Dr Kniest has not appeared, and we confirmed that he is still employed by the NTEU.  There's been no explanation provided about that.  Who was called was Associate Professor Hepworth, and he was called to give evidence about a very narrow issue, and ultimately, with respect to Associate Professor Hepworth, Professor Wooden's evidence should be preferred.


I hardly need to make that submission, though, because Associate Professor Hepworth in cross‑examination agreed with almost the vast majority of what I put to him, including that the NTEU's survey could not provide reliable evidence about the hours that staff were required by the university to work, and that's the primary basis on which the survey is relied, to give evidence about the number of hours that staff work and the number of hours that staff are required to work as a subset of that evidence.


So we did want to highlight that.  I won't go through the rest of it.  We make some comments about the NTEU lay witnesses and we do rely obviously on the totality of our submissions.


One of the - and it's not determinative, but one of the factors that the Commission needs to take into account is what significant change has there been since 2010 when the award commenced?  The NTEU asked some witnesses questions about that.  Having gone back through it, they're not particularly probative or helpful evidence, because the questions were almost invariably framed as, "You'd agree with me that over the last 15 to 20 years that."


You might recall Mr Picouleau had a number of propositions put to him with that as the precursor sentence.  "You'd agree with me that there's been technological advancements in the last 20 years."  "You'd agree with me that there's been greater accountability in relation to academic work in the last 20 years."  All of those things are almost so obvious they go without saying, but what wasn't there is, "What are the specific changes that have occurred over the last five years" - or seven years, to be fair, now.  It was five years when we started this process - "seven years that would warrant a significant change in the award safety net?"


In relation to the survey evidence more generally, we've set out at 5.4 at some length all of the problems with the survey evidence - the lack of representativeness, the low response rate, the high dropout rates, the leading nature of the questions, the fact that it's, with respect to Dr Kenny, his survey, which was the other survey that is relied upon was a subset of those who were proactively interested from the NTEU's original survey in hours of work issues.


That's sort of highlighted at paragraph 117.  Again, you might recall that we didn't have before the Commission the actual preamble to a number of the questions.  The Bench called for it and the preamble in Dr Kenny's survey stated what we've extracted there:


Academic workload remains one of the key areas of concern for our membership.  The evidence indicates that many staff are working longer hours and enduring increasingly heavy performance expectations.


In a neutrally worded survey seeking to canvass and attract a representative sample of employees that's obviously a survey - it's an NTEU survey for an NTEU industrial purpose and it should be given appropriate weight.


If you turn to paragraph 142 on page 38 we've set out very briefly very much a snapshot of evidence that the Group of Eight relies upon.  That's not to say we don't rely upon the evidence of the NTEU witnesses as well, but part of what we wanted to demonstrate was the nature and the quality of the witnesses that were brought to the review by the employer parties.  To be honest, it surprised me when I saw the consistent length of service and experience in the sector.  The low water mark is Sue Thomas at 19 years.


Mr McAlpine, and I respectfully acknowledge his submission, acknowledged in his opening this morning that their views should be given some weight.  He sought to characterise most of their evidence as more opinion rather than detailed facts or data, and there is a mix of both.  Part of the reason why there are views that might be described as opinion is predominantly in the area of academic work, and it predominantly goes to their view as experienced academics themselves and senior academic leaders in the sector about what this clause will probably mean for their institutions if it had to be applied.


It's a bit hard for us to point to data or more specifics about exactly what it will mean, because it's without precedent, and Mr McAlpine acknowledged this in his opening.  Its derivation does not appear in any other document.  It's not part of the international regulation of academics, it's not part of the Australian regulation of academics.  It uses terminology that's new terminology that is not part of the industrial regulation sector.


I will come to the parallels that the NTEU seek to draw, because I think there are a couple of fundamental assumptions, if you like, or conclusions, that are very much glossed over by the NTEU to try and buttress how their clause could actually work in practice that just don't withstand scrutiny, and they are that you can use broad performance expectations as a proxy for a work allocation, and secondly, that the universities allocate time to particular research activities.  They don't, and I'll explain where the weight of the evidence lies.


So the general point we make about the evidence of the employers, and particularly the senior academic witnesses, is that particularly in the context of a review, particularly in the context of a novel provision, their evidence and views about the sector, the nature of academic work, the lack of suitability and the practicality issues that the NTEU provisions would give rise to should carry great weight.  That doesn't diminish the role of this Bench, but it would be an extraordinary thing, in my submission, for the Commission to, under the umbrella of a relevant necessary safety net and minimum conditions, to impose an overtime payment for academic staff, to impose a range of novel regulation that's not part of academic employment anywhere in the world.


Turning to the academic hours of work clause, the NTEU have sought a variation and to impose what is now, I think, exhibit K, exhibit J's the mark-up and exhibit K's the clean version.  The NETU maintain the clause is necessary.  They make submissions that it's fair to both employers and employees.  They maintain it's simple, easy to understand, could be readily applied.


They maintain, I'm quoting, "The proposal goes no further than introducing no greater complexity than is necessary".  That's the NTEU closing submissions at paragraph six.  In my submission, that's not a credible submission.  You only need to look at the clause.  You only need to recall the cross-examination of Mr McAlpine, who was the author of the original clause, to reject that submission.


Even the explanation today about how light touch the overtime was, I genuinely lost track about halfway through Ms Gale's explanation.  That, in part, perhaps explains why there's now a resort to high level principles and an attempt to simplify the clause.  The point we wanted to emphasise is that the problem isn't Mr McAlpine's drafting.  The problem is that you're trying to regulate something that is ill-suited to the type of regulation that you're trying to apply to it.


There's all sorts of cat analogies that I could bring about herding cats and so forth but essentially what the NTEU clause seeks to do is to treat academic employees as having very precisely directed activities when that's just not the case and to essentially adopt a circumstance where for the first time they're treated as having an hourly rate of pay or they're treated as having to work a particular number of hours that are dictated by the employer.


You'll see we make extensive submissions about the academic hours and the evidence, and they appear at pages 40 to 109 of our submissions.  I just wanted to give you a little bit of a road map of that and then to call out three areas in particular.  If you turn to 6.3, which is paragraphs 173 and following, and I'll skip over part of this but at 173 and 174 and 175, we make, in summary, some submissions about why it shouldn't be adopted.


What I wanted to take you to is 177 onwards and in particular what we say the evidence shows, and we say that this evidence supports our submission that the NTEU variation is not necessary to meet the modern award's objective and is otherwise highly problematic.  178A and following, the existing approach to regulation is well established/supported, is consistent with the regulation of other similar employees.


I've touched on this already but there's no reliable evidence of the total average hours that represent what universities require.  At its highest, there's some evidence of the approximate number of hours that staff report themselves as working in the sense that they're performing academic activities.  But there's also strong evidence, and we've summarised that evidence, but there's strong evidence that there's a number of contributing factors or reasons for that driven by the staff member and so whatever the hours number it is that's formulated, there is no doubt that a portion of those hours are not directed or required, directly or indirectly, by the employer.


(c) The key features of academic employment and the nature of academic activities support the current approach to regulation and do not support the NTEU's position, and I'll come to that in a moment because I do want to address you on section 62.  They're ill-suited and the word that I keep coming back to every time I look at the clause and look at the evidence is how ill-suited it is to the regulation of academic employment.


(e) And I've touched on this already and I will take you to some of this evidence, the NTEU's reliance on performance expectations as a basis for determining a staff member's required activities, so that's a joining step that's glossed over in a lot of the NTEU's submissions.  They talk about workload, they talk about, and we heard it this morning, of volume, a known volume, of work.


What they're really missing is the joining piece which is "Well what are the activities you're actually to do to produce your five articles over a five year period", and then to make a determination of the hours or a fair average and we say that is contrary to the weight of the evidence.  There is some discreet evidence that the universities in a broad sense within the total number of hours, 1725 if they've allocated 40 percent to research, that the expectations can broadly be met within that time.


What the NTEU clause requires though is you to take that and distil it down to a judgment that attaches an overtime and to do so within a tolerance of two hours a week.  Universities don't attempt to quantify research outputs based upon time and the NTEU seeks to draw parallels with the existing clauses but the clear weight of the evidence shows, and the Vice President touched on this, I think, in the course of the proceeding, the existing workload allocation processes, and there's two different models out there in the enterprise agreements, they're focussed on the allocation of teaching and teaching related activities to provide a residual period that's available for research.


It's done sometimes as a percentage, so forty percent, that we will allocate 40 percent of 725 hours, and we attach time to teaching and that leaves 60 percent.  The other way that it's done is what we heard from Professor Leach at Swinburne, and it's also apparent on the face of the Deakin enterprise agreement, which is to say "We'll allocate you a block of time for research based on your previous research outputs" and Commissioner Johns asked a number of questions and we've drawn those out in the cross-examination of, I think it might have been examination-in-chief, of Professor Leach, that demonstrated that.


What's not happening though is the university, directly or indirectly, determining the research activities that are actually going to be undertaken, other than that they need to be capable of achieving publication or it might be a book, it might be a research, it might be a literature review, and they don't attempt to attach an estimate of time and so even in Professor Leach's situation, they're looking historically as a predictor of how productive they might be.


They're not saying "Well you're going to produce five articles this year.  That's on average a fair estimate is 200 hours an article, that's 1000 hours.  We'll give you 1000 hours".  (g) I've made that point at some length.  (h) The evidence is that there will be adverse outcomes if we had to apply this clause.  It would likely lead to disputation given the difference of views about the required work, what the required work is and even we heard again this morning from Ms Gale about well promotion could be required work or the expectations to be promoted could be required work.


The consistent evidence that was given is that all universities encourage staff to look to promotion.  No‑one's sacked if they're not promoting.  There's a number of academic staff who are level Bs or level Cs throughout their academic career and are happy.  Are those staff required?  All of the staff who are being encouraged to seek promotion, is that required work?  I don't know, is the honest answer.


I don't know whether under the clause that would be required work or not.  But that's just one facet of the difficulty with this concept of required work, particularly where the required work is not actually the activities.  It's what the academic might decide the activities are to meet a broader performance objective.  The university would have to more closely regulate research and prescribe what research activities the staff member could do and could not do and which would be recognised to ensure compliance with the clause.


In part, and this is often dismissed as the sort of – as if it's irrelevant, because there'd be unfunded labour costs.  Universities are large.  Universities, in one sense, have a lot of money but it's not free money, it's committed money.  Every dollar has to be allocated somewhere and that approach would be contrary to the concept of academic freedom, it would be contrary to the nature of self‑determined, not just self-directed.


Sometimes it's passed off as well they just decide when and where they work.  They're actually deciding what they're going to do as well as when and where they're going to do it.  Professor Hughes-Warrington from ANU talked in terms of assumed effort and ascertained effort.  There's essentially an assumption at the moment, a broad assumption, that underpins workload clauses and that they would need to move to ascertained effort and whilst Mr McAlpine and Ms Gale have both respectfully submitted, our clause doesn't require monitoring, it doesn't require time recording.


The views of at least some of the senior academics is "Well to be confident in our compliance with the clause, we would have to move to some model that more closely regulates and monitors academic work" and we and the union are ad idem that that is not the right approach.  It would consequently affect research and innovation.  There was evidence given by Professor Hughes-Warrington, by Professor Freshwater, now the vice chancellor at the University of Western Australia.


It was not challenged on cross-examination that it would undermine the international attractiveness of Australian academic employment.  These are serious consequences.  These senior academics have been genuinely concerned about this clause, not because it's got a cost consequence but because it does fundamentally undermine the nature of academic employment and the concept of self-determined innovative research.


I just want to turn to the question of section 62 and whether there is an existing safety net.  The NTEU's quite dismissive of the relevance of section 62.  Our primary submission is that there is no reason why an annual salary, together with protection against being required or requested to work unreasonable hours, cannot constitute a fair and relevant safety net.


COMMISSIONER JOHNS:  How do you answer Mr McAlpine's criticism that if you say their overtime provision or hours of work provision is unworkable because it can't be monitored or recorded, how can 62 help you in that regard.  How do you have it both ways?


MR PILL:  Can I answer that in a number ways, but the same criticism's equally true of their position which is if it's readily ascertainable, readily amenable to attaching a number of hours to it, why is section 62 - - -




MR PILL:  - - - not an available mechanism?  That's sort of my glib, churlish response.


COMMISSIONER JOHNS:  More substantive.


MR PILL:  The more substantive response, but it is an important response, I shouldn't diminish it, can I take it in two steps.  The first is the related criticism that universities don't require hours or request hours.  We haven't put this in our submissions, and for that I apologise, but the explanatory memorandum for the Fair Work Bill, and it's actually extracted in this version of the Fair Work legislation, references, in relation to the - - -


VICE PRESIDENT CATANZARITI:  Or this version because – what are you looking at in the transcript?  Transcript know what this version means.


MR PILL:  I'm sorry.  Look, it doesn't matter where I'm reading it from.  I'm extracting it from the explanatory memorandum of the Fair Work Bill, expresses the view at paragraph 247 of that explanatory memorandum in relation to section 62:


An employer may request or require an employee to work additional hours either expressly or by implication, for example by setting tasks that could only be completed by the employee working additional hours.


That deals with one of the aspects of the criticism, which is well you don't request additional hours, you just require particular tasks to be performed.  It's clear from the explanatory memorandum that the concept of requesting and requiring can extend to that indirect imposition of work.  In terms of the question that you've asked more directly, which is well how do you decide whether that particular work might be unreasonable, the answer is there's a distinction between looking at the individual circumstances and looking at all of the factors that are listed in section 62 and looking at the particular activities that that staff member is undertaking and looking, yes, at the research that they're undertaking, not some homogenous estimated number that might attach to an academic at level, and this is reflected in a tangible way in all of the enterprise agreements.


The NTEU have sought and agreed clauses that not only go to the general disputes power that was being referred to earlier, there are specific clauses in the vast majority of enterprise agreements, and the Monash agreement's one of them which is attached to Mr Picouleau's statement, where there is a mechanism to seek a review of unreasonable hours and there's a set of factors that have been included in enterprise agreements to assist in that determination and so I accept, and indeed it supports our submission, I accept that you can't say well is it performance expectation of five articles over five years and that's an unreasonable imposition of hours, but you can actually look at the particular activities that they're undertaking with full information about that individual's circumstances and make some assessment as to whether they're being required to work unreasonable hours.


That also enables some of the difficulties with their clause, which aren't reflected in practice, to be overcome which is that individual tailoring of workload to the particular circumstances of the individual.  What at its highest it does show is that an indication of factors or matters in relation to hours or allocated work should be taken into account in assessing section 62, and this is not our primary position, but to the extent that there was a concern that there was a need to better guide and better enable section 62 to have that role as stopping unreasonable hours being requested or required or arming an employee to refuse, that's the appropriate mechanism or vehicle.


It's permitted by the Act and, indeed, section 62 itself concludes with the factor of any other relevant matter and so we say that that does provide a mechanism together with an annual salary that can constitute a fair and reasonable safety net.  The other dimension to the section 62 submissions is the NTEU put forward various hypotheticals to say "Look there is no proper safety net" so there's nothing to stop, I think the latest one is, there's nothing to stop an employer from writing into a contract "You will work 80 hours a week" and some of them argue work 80 hours a week for no more than the award salary.


In my respectful - that submission is ill founded.  It would clearly not be consistent with section 62 to mandate that you have to work 80 hours a week for no more money and to the extent that an enterprise agreement sought to do that, and it doesn't, and we heard this morning that there's nothing to stop people being given unlimited workloads.  Every single one of the enterprise agreements that we've looked has an annual hours number and they're all under 38 per week.


1725 - well to be fair, Professor Leach at Swinburne has 1800 as an allocated amount and there's 100 hours of at large, but that's the high watermark and the clauses require the university, in terms of what the university allocates, to fall under that number and so a number of the submissions that were made this morning, not only the hypotheticals, they're actually inconsistent with the evidence in these proceedings and inconsistent with the regulation that's included in the EBs.


The point I was going to make is if the EA did say you have to work 80 hours a week, it could not be approved.  For no more money, it could not be approved and I suggest for any amount of money it could not be approved.  Under section 55, to the extent that such a provision was ancillary to the award or ancillary to the NES, it would have no effect if it was detrimental to an employee in any respect when compared with the NES and therefore it would have no effect under section 56 and it could not be approved under section 186 of the Fair Work Act.


I've touched on the fact that there are mechanisms in the enterprise agreements to deal not only with disputes about the workload models, and the Vice President's right and Monash is an example of this.  The clause expressly requires the models to be developed and applied collegially and the evidence is that that is the case.  The evidence is that the workloads, by and large, are agreed, they're discussed and agreed, and we've extracted some of that evidence.


But there's also not only the general dispute mechanism, there's these review mechanisms particular to academic hours of work that enable those individual circumstances to be considered, and what the evidence showed, and Mr McAlpine acknowledged in cross-examination and was positive evidence from the employers, is there's been very limited disputes about those matters and the only substantive dispute that you heard evidence about was from Doctor Kenny who actually gave inconsistent evidence about whether the dispute had been resolved by Commissioner Roe but ultimately it was resolved and it was a question of enforcement.


Whilst he gave evidence about problems, he also gave evidence that the issue was that the WAM, or the Workload Academic Model, did not meet the requirements of the EA.  I just briefly wanted to tackle the question of excessive hours and we make some submissions about this at paragraphs 214 onwards and the general submission we make is at 214 that the evidence about academic work and the hours relied on by the NETU does not reliably establish either the hours worked by academic staff or the proportion of those hours that are actually required by the employer and we've made some submissions about that.


What I wanted to direct the Bench to is section 223 onwards.  At 223 we make the point which advice of all of the evidence relied upon by the NETU to establish excessive or unreasonable hours, however it's badged, is that there's no differentiation between what might be called work and what might be required work and we heard from Associate Professor Hepworth.  He almost had five categories of work that are all seen as work, that which is directed by the employer, that which isn't directed but is clearly a requirement, a specific requirement, then there's a bunch of work that academics do that essentially they're not accountable for but is part of the general umbrella of their employment and then there's also what might be called the true passion, the extra research or whatever it is that I want to do because I'm a committed academic.


What we've done at 224 is highlight what the evidence showed about explanation of why, to the extent that academic staff might work additional hours or otherwise have negative attitudes about their workload, the sorts of things that were given in evidence.  I won't take you through the evidence but the summaries are that there's personal reasons, it is a vocation, the love of the work, perfectionism, attainment of personal goals.


Professor Hamel-Green is retired.  He's still researching, and that's true of a number of so called retired academics.  At (b), own initiative because they want to enhance their prospects or they're attaining academic promotion or their general academic standing or reputation.  (c) That academics, when they're thinking about "Well what work do I do?", they include basically everything they do.  They include non-allocated external work, discretionary activities, going to conferences, sitting on boards, engaging with industry, community service, all of the things that fall under the general rubric of "I'm an academic".


(d) We heard evidence from Professor Herberstein that staff get a bit proprietary about their area.  She had staff who she tried to take teaching off and they refused and resisted and she's given evidence there.  Professor Biggs gave evidence, and a lot of this evidence was not examined or cross-examined, certainly not contested, about the sorts of individual things that impact upon hours that academics do.


We had Doctor Dix gave evidence about having five or six jobs concurrently.  I've got no idea what his hours were but he had five or six jobs at different universities concurrently.  (g) And this is the elephant in the room in this proceeding, the issue, by and large, is not about "My employer's given me too much work".  The issue is "My employer's given me too much teaching.  They're giving me too much stuff whereas I prefer to be just spending most of my time doing research" and there's nothing contentious about that, and indeed my clients are research intensive universities and they want staff to research, and we've extracted some of the evidence there, including from the NTEU witnesses that show that that's the primary issue wherein the staff member is dissatisfied with their workload allocation.


Putting aside the difficulties about attaching or working out what the activities are that you should be looking at then attaching a time to it, even if we accepted that that was a definitive exercise, you've still got the issue of well are the hours actually a function of that or are they a function of other things that an academic brings to the table?


There was some contrary evidence, so there's evidence about, and we've extracted some of it there, about academic staff readily achieving and exceeding expectations.  We had Professor Andrews who, against performance expectations of two to five publications over three years, had produced about 24.  He had a target of meeting a certain amount of external research income and he'd exceeded it 10 times over.


We had Professor Biggs give evidence about his faculty at Queensland that the proportion of the work that's actually allocated is about a third and so about two thirds essentially academic having freedom to determine what they're going to do and how they're going to do it.  We don't hide from the fact that at some universities, and it's not all but at some universities, there are performance expectations and there's a framework within which some of that work allocation occurs but there's a number of things that need to be said about that, and this appears at 244 onwards.


I'm sorry, can I stay on page 70 and I don't intend to take you through it.  I just wanted to highlight for you the evidence that appears there about the nature and the determination of research.  There's these repeated assertions that the university just drives everything, dictates everything, determines the volume of the work.  The evidence is to the contrary.


The evidence is that in relation to work outside of teaching, it is the academic who drives it, it's the academic who determines it.  Sometimes there's technical reasons for that, "I'm the expert in a particular field, even my head of department doesn't really know what the best use of my time might be.  I determine my research, I determine what I'm going to do and I determine how I'm going to do it" and that's borne out by the evidence that we have extracted.


At 240 on page 74, we've highlighted some of the evidence that goes to this question of how readily you can attach a fair average or an estimate to research time and we've given extracted some of the evidence about that.  I did want to highlight 241.  Whatever the shortcomings of his survey, Doctor Kenny produced what's probably the only quantitative piece of information before the Commission about what would different academics think is a fair estimate for a particular amount of activity, and the activity here is not a particularly wide ranging activity.


It's an estimate of time for undertaking a unit planning activity, so it's not even as diverse as research and the issues that go with research and as we say at 242, what it shows, and I cross-examined Doctor Kenny about this, what it shows is the different academics in the discipline, when asked about well essentially "What's your estimate of the time it would take to do this activity?", you can see the divergence I've used there and even if I bring a statistical rigour to it and exclude the high watermark, and perhaps that was a misunderstanding of the question, even if I just look at the first four columns, we basically have 30 percent estimating nought to 50 hours, over 25 percent estimating between 100 and 150 hours or 150 to 200 hours, another was estimating in excess of 300 hours.


Bearing in mind what the NTEU clause, by attaching an overtime entitlement to it based upon how many hours on average in a week you would do, is to require some sort of consensus to be reached in relation to all of these activities, attach a fair estimate to it and then presumably not have a disagreement with the staff member about whether that's a fair estimate or not.


I just wanted to highlight that, that whilst in one sense it's fine in theory to talk about "We'll just readily determine a fair estimate of the time", the nature of academic work does not lend itself to it and without being too critical about it, the nature of academics with the different perspectives and opinions that they bring even within a discipline, does not lend itself to it being anything.  I think someone described it not as being a safety net, "This is just a recipe for disputation".


At 244 I talk about performance expectations.  Attachment 1 to our submissions is a summary that we prepared of the evidence that the NTEU brought to the Commission predominantly as attachments to Mr McAlpine's statement, and we've listed the exhibits that we analysed, so this appears on page 199 of the document.


What we've attempted to do is to identify a description of the process that's evident from the document, a description of the academic performance expectations, our judgment about whether they're quantitative or only qualitative and whether they're stated to be binding or whether they're recommendations or guidelines, and you'll see there's a mix.


There's a mix, some of which are more prescriptive, some of which are very much not descriptive.  We don't pretend this is exhaustive of all the information that's in those lengthier documents but we do submit that it, amongst other things, shows that you can't take the fact that there are some performance expectations at some universities as a sound basis to set minimum award regulation, for two reasons.


One, they're not expressed or used that way at a number of institutions, and we heard from Professor Hughes-Warrington they don't have anything at all, so outside of the allocation of teaching it's a matter of individual discussion with the staff member as to what they might do.  The NTEU will say "Well that's fine, you don't have to worry about that because under our clause then there's no expectations in that space and you can just allocate them essentially up to 38 hours teaching".  That appears to be the response to that position.


Turning back to – sorry, whilst I'm there, the closest we get to assisting the NTEU is places like Melbourne and Monash and the evidence that was given by Professor Andrews but even in that space, and so if I take one of those, if I look at Melbourne, five publication minimum over five years, 100K of research income over five years and performance of at least one task from a list of community engagement activities.


If I can take you back to 248, we identify the difficulties in this conceptual approach the NTEU, and I really put them in two boxes, one is that they don't dictate the research activity, they're a description at best of an output and secondly, they're not a proxy or an estimate of time, but there are other points to be made.  At 250-251, that they don't all have these performance expectations.  252-253, that they are a guide and there was evidence that these are used as starting points for discussions.


There was evidence from Professor Andrews that we don't run around dismissing people.  There was also evidence from Professor Andrews that the vast majority readily meet and exceed them as well and we've extracted some of that evidence there.  But even if we put aside that, even if we accepted that they were determinative, they still don't fill the gap that the NTEU needs them to fill.


They're not based on one year's annual activity for starters and so if I'm an academic staff member and I produce my five publications in year one because I've done a piece of seminal research, basically I've met my performance expectation for the next five years in research.  Ms Gale said look, as part of her overtime life comment, staff don't get more for spending more hours.


The corollary of their clauses also true that even if I only work 35 hours, if I've done that well and done it efficiently, under their clause I get an overtime payment.  I get an overtime payment and I'm not aware of any other award anywhere that provides an overtime payment to people who are working less hours than the stated number of ordinary hours.


The point we make at 259 and following is even if we made a number of assumptions that are inconsistent with the evidence, that they're not guides, that they're not part of a discussion, that they were solely based on annual outputs rather than across a three to five year period, the work that the staff member will actually do to meet the outputs is still a matter for the staff member and that's what drives the hours, and it's not an answer to that, with respect to the NTEU, to say "Well you don't have to worry about that because we're just looking at a fair estimate.  We don't actually need to look at what activity you're going to do.  We can just translate it from the fact that you're going to do two research publications for that year".


At 263 and 264 and onwards, we point to some of the evidence that the outputs cannot, other than in the broader sense, be equated to time, and I've been trying to think of an analogy and I was thinking about lawyers and it'd be a bit like setting me a target that I win five cases over the next five years.  How much time's that?  In one sense I could come up with an average but if it's in this case, as opposed to a more discreet case, and if I got to pick and choose which cases I did and which courts I practised in, it'll have more bearing on the amount of time than the fact I've got to win five cases.


Same might be true about KPIs within the Commission, I don't know, about conclusion of cases.  That might be a worse analogy.


DEPUTY PRESIDENT KOVACIC:  Be happy if my football team won five games in a year.  Not this season.


MR PILL:  Has to be a reasonable expectation, Deputy President.  Look, we accept in a broad sense that a volume of outputs can have some relationship to time.  Whilst there was strident evidence from Professor Biggs that really has no relationship to time, we can accept in a broad sense that it has some relationship to time but certainly not to the extent that the NTEU clause needs it to.


At paragraph 85, sorry, page 85, I've extracted some of the evidence from Professor Andrews.  Not all of his evidence is helpful to our position but overall I thought he gave very balanced evidence and he identified and accepted and made appropriate concessions.  He accepted that when you talk about allocating hours to research that at best it's a broad guesstimate:


Difficult, you accept that?‑‑‑Yes, research is a many and varied wonderful thing.


Then he goes on to explain what they've done at Monash is not to attempt to attach time to research but to attempt to quantify the academic work that you reasonably and sensibly can.  The other issue which hasn't really been mentioned very much is on page 86 which is, without diminishing that concession that there can be a broad correlation, it is about quality of performance rather than volume and it shouldn't be glossed over.


If I do high quality research, I'll generate 10 publications from the same piece of research.  If I do a lot of bad research, I might generate, if I'm lucky, one piece of publication from that research, so it is about ‑ ‑ ‑


VICE PRESIDENT CATANZARITI:  What about the underperforming academic, because we had disputes here about (indistinct) underperforming who take a long time to generate the research.  Should they be compensated because they take a long time to produce the research?  Because they would potentially be deemed more hours than the normal cycle.


MR PILL:  We would say no but I would use your question to make the related point which is it's a performance management issue.  If the university was to discipline that staff member, the staff member would potentially be able to challenge or not challenge whether that disciplinary action was reasonable based upon whether, given the amount of teaching that they were doing, because generally my experience, the situation is underperforming in the research space, called to account on that and they say "Well yes but you've given me too much teaching.  I can't meet those expectations" and that would be a legitimate consideration in whether an ultimate dismissal was fair or harsh or unjust or unreasonable but what it highlights is that that's a performance issue.  That's not a work allocation issue.


You can demonstrate that by looking at the teaching.  The teaching expectations are not about increasing the teaching volume.  It's about improving the teaching quality and whilst we're focussed on the research expectations, the same would be true in trying to work out what's required work.  There are performance expectations about teaching, about service, that are generally not quantitative, they're qualitative and the NTEU clause bundles them up as part of required work.


Whatever the activities are that are considered to be necessary to achieve that outcome, and then to attach an overtime payment to it and that issue, therein lies the biggest difficulty that my clients have with the whole approach of the NTEU.  It's their clause is not directed at trying to put some flesh around the reasonableness of the hours and the work that's allocated or determined.


It's to go further than that or, indeed, to potentially entrench that but to then attach a payment to it.  The one issue which at 275 I picked up from the Bench is whether there's a concern that performance expectations could be set at such a level that they couldn't reasonably or possibly be performed and there's a couple of things to say about that.


One is that's inconsistent with the evidence about how these research performance expectations, or general performance expectations, are established, that they are based on international standards and collegiate discussions.  The second point is the factual one that the majority readily meet them and that to the extent you don't, it forms the basis of some discussion about how you're going to enhance your career going forwards rather than immediate termination.


It also overlooks the primacy that's currently given in the processes to that one on one discussion at about the tailoring, and lastly the point I've just made which is if the performance expectations were increased such that they can't be met, that's an issue for the reasonableness of any performance management that might follow.  At 610, and I won't spend much time on this, at 610, it deals with this question that the NTEU seek to buttress their position by trying to draw parallels with the current EAs to say "We already do what our clause would require you to do".


With respect, that's not the case and we've set out what the evidence shows about how the current clauses operate, and that's summarised at 280.  The practical applications of the provisions are directed at allocating the time to the teaching and the teaching load activities such that there's a period of time available to undertake the research and I've made these points but they're summarised there again.


Then that's buttressed by the evidence, we've extracted it for you at 281, from Professor Andrews, from Professor Leach, from Professor Garton, from Mr Picouleau, from Marnie Hughes-Warrington and from Professor Biggs.  The NTEU's reply to that is to say "Yes, but there was some evidence", Professor Garton, "that the expectations that you've set for staff more broadly, that you would expect them to be able to be done in that period of time", and that evidence was given but that's a far cry, for all the reasons that I've gone through, that those broader expectations about five publications over five years or a particular number of amount of research income over three years, can attach a particular time to that activity in a particular year.


At 283, and I'm sorry there is a typo here or more in a typo that I wanted to fix, at 283 we've provided some general descriptions about the obvious differences between the NTEU clause and the EBA provisions and most obviously they don't contain prescriptive regulation about self‑directed activities.  They don't define required work to include hours of work that a staff member decides are necessary to meet performance or promotion expectations.


They don't provide for overtime, they don't require and they're not based upon recording or monitoring academic staff hours even as an alternative approach.  They don't impose a tight managerial approach.  They don't contain concepts of ordinary hours, workload, ascertained hours or such constructions.  G&H should be prefaced by rather they focus on achieving a balance within the activities allocated by the universities which are required to be undertaken, being teaching, associated activities and some limited service with the self-directed activities and they contain a process for staff to seek review or otherwise dispute a workload allocation including on the basis that their workload allocation is inappropriate, unreasonable or excessive.


For all of those reasons, putting aside the wording and the complexity in the NTEU clause, it highlights how ill-suited this attempt is by the NTEU to impose this form of regulation let alone to describe it as the minimum necessary to provide a safety net.  The one general issue I skipped over that I did want to return to is the question of the annual salary compensating and what does it compensate for.  We make the submission, and I'm sorry I'm backtracking, at 6.4 - - -


VICE PRESIDENT CATANZARITI:  What page is that on, Mr Pill?


MR PILL:  Page 48, your Honour.  There was evidence given in the proceeding by Mr Picouleau and Mr Picouleau in the sector since the mid-90s, industrial officer, previous knowledge of the sector and its regulation and Ms Gale said this morning there was no evidence about the annual salary compensating for the whole of the employment or whatever the hours might be.


With respect, that's just not true.  There was uncontested evidence and Mr Picouleau in his statement sets out the history, references the relevant cases and makes or gives us evidence of the matters that really appear there at 181 that at all times the relevant award regulation for academic staff has provided for an annual salary as compensation to perform the entirety of their role.


It's not based on a 38 or ordinary hours of work and at no time was there any award provision regulating hours of work for academic staff in industrial awards prior to the modern award made in 2010.  He describes where clause 22 came from and does that in more detail in his statement, and at no time, including the current modern award, has there otherwise been regulation of academic hours, et cetera, et cetera, and he provides an explanation at (e) as to why that is the case and at 184, Mr McAlpine, in cross‑examination:


That situation that I've just described is an annual salary paid for performance of all of my work as an academic has been in place since the late 1980s.


Is that fair?‑‑‑Yes.


You'll see the other evidence that's given there.  The evidence before the Commission is that the annual salary is to compensate for the whole of the employment and it's accepted that that might be 30 hours or it might have been 45 hours.  The NTEU attempt to deal with this by using terms like loaded rate and their submission in reply is that "Look unless the word says that the salary is a loaded rate, then the Commission has to proceed on the basis that the salary is for 38 hours only".


That is contrary to the evidence.  There is one point against us which is that the casual rates referenced in the award have a calculation mechanism that divides the annual salary by 38 to establish a rate for lectures and tutes but that doesn't alter the submission that I just made about what the annual salary is for.  It's a mechanism or a deviser to calculate a particular rate for a casual academic staff member.


Indeed, previously it wasn't 38, it was a different number.  My friend is whispering to me it was 37 and a half.  The point being it was just a mechanism to come up with a number.  It didn't change the character of the annual salary rate and so the submission that we make about this is that this goes to this question of overtime.  If the Full Bench accepted the NTEU's claim that overtime should be introduced, you would need to do some analysis of essentially ordinary hours that are compensated for by the current annual salaries and whilst there are comparators that can be drawn, and Ms Gale drew one with graduate engineers, there are other comparators that can be drawn that show that academic staff award salaries are significantly higher than some other comparable classifications.


At 191, we make the submission that to the extent the NTEU variation provides for overtime payments and fails to address the fundamental question of what employees are already compensated for means that the substantial merits case for the imposition of overtime payments has not been established that the NTEU variation should not be adopted by the Full Bench.


What I've just described about the accepted role of the annual rate, and it's not an annualised rate, it's not the case that it was previous overtime that somehow has been loaded into a rate, it's the case that the annual rate was set to compensate for everything for the whole role.  The NTEU supported that without demure and, indeed, support up until 2015 and it's at that time they say "Well we've withdrawn our consent.  As a sophisticated industrial party, we've withdrawn our consent" and that, in and of itself, means that you need to re-visit the question.


Last couple of points about academic workloads issue, I've spoken about the adverse consequences.  There's been reference to the BOOT and we make a submission about that.  The NTEU position seems to be, in part, that this is necessary because then in the BOOT you'd be looking at the annual salary and looking at whether compensated for any additional hours that are required under the enterprise agreement.


They fail to actually explain as the Security Services Full Bench, as the Black Coal Full Bench says is required to say "Well what would that mean?  How would that actually impact in practice?" and we've attempted to turn our minds to how you could meaningfully apply the BOOT in those circumstances and I apologise, I'm just trying to find the relevant page, page 97, thank you.


We've set out there some of what would be required because it's not the case that the enterprise agreement's going to say "Your hours, academic staff, are 60" and therefore there's some easy comparison between salary and hours.  What it would require is essentially for every discipline, for every level, for every group of work that the staff member logically could be undertaking, whether that's required or not, to then identify well what's the likely number of hours that that might translate into and do you have a sufficient salary to compensate for those hours?


Self-evidently, it would be a challenging exercise.  It would impose a substantial cost on universities and administrative complexity.  The alternative seems to be that you don't need to worry about it because the EA salaries are so high that you'll necessarily, other than perhaps at the very bottom end, you'll necessarily exceed it.  If that's the purpose of the NTEU clause and its primary relevance is for the BOOT to drive up salaries, that's not a sound and proper basis for the variation of the award.


Lastly, my friend raised a number of issues about part time employment.  The university can and does employ part time academics.  There was no evidence in this proceeding about any difficulties or any problems.  There was evidence, and it's referenced in the NTEU reply, there was some evidence in cross-examination from Professor Vann and Mr Ward from UNSW and the gravamen of that evidence was that we deal with that through the workload allocation process, they've got a fraction and there is essentially a proportionate allocation.


It might still be 40 percent of their fraction goes to teaching, 40 percent to research, 20 percent to service.  There seemed to be this belief underpinning the submission that unless you do totally prescribe the hours for a full time employee you can't sensibly have a part time employee.  This is not borne out in practice.


We have part time commissioners, we have part time managers, we have a range of part time employees who are engaged on the basis that it's a proportion of a full time job.  But my main point is if this is a big problem, and there was reference made to Doctor Strachan's report that there are some part time employees working more than 40 hours, Doctor Strachan acknowledged in cross-examination that her material and her analysis didn't distinguish between required activities and just activities that might be being undertaken by staff, whether they be part time or full time.


But otherwise there's no evidence.  We've heard Ms Gale say she spoke to someone at Monash the other day.  That's, with respect – and so we say in relation to the part time, yes, some of the wording that appears in that definition is not readily translatable to the nature of academic employment but you shouldn't compound that in the way the NTEU want you to, and the other point is, it's very difficult to see how the NTEU clause addresses this issue either.


Whilst it has this concept of ordinary hours workload, it's not equated to normal ordinary weekly hours, as that term's defined in the award, and they're not seeking to change that term so a lot of the problems that Ms Gale identified would apply equally to the NTEU clause.


I intended to move briefly to, and I'll be much more brief in relation to some of the other matters, professional and discipline currency allowance, we deal with this at section 7, page 110 onwards.


We identify at 7.1 para 355 the issues for the Commission.  In addition to whether these variations are necessary to achieve the modern award's objective, it does seem to us that a section 156(3) issue arises particularly in relation to the discipline currency allowance, and I'll come to that, that it is essentially an increase in the rate that's applicable to undertaking lectures and tutes and it's therefore precluded unless there is evidence the change in work value.


More generally, the substantial merits case hasn't been made out and the provisions don't constitute variations to the extent necessary in the modern award's objective.  All I intended to do is to highlight a few things.  If I take you back to our summary on page 13, in terms of policy familiarisation, there are a number of statements that can be made about it.


The first is that policy familiarisation is a widespread feature of all employment.  The case seems to be premised, in part, on, yes, but teaching and assessment carries with it some extra policies, specific policies.  Part of what we say about that is that to undertake those teaching and assessment activities, there is already an amount that's built in for preparation and incidental activities and to the extent that I am preparing for a tute and I was to look at a policy that might be related  to that, or more likely, as the evidence shows, there's a continuing staff member who's the unit co-ordinator who's prepared the examination guide or prepared the curriculum and the required content of the lectures, I go and ask that person or access that person.


The general point we make is that different classes of activities across, whether it be higher ed or elsewhere, often carry with it incidental policy awareness requirements that form part and parcel of that employment.  In the higher ed sector in particular, whilst there is a rate that attaches to that activity, it does include a proportion of hours for preparation and incidental activities.


We make a number of submissions about the difference between policy awareness and policy familiarisation.  With respect, the evidence from some of the NTEU witnesses about how much time they needed to spend reading policies was atypical and a little overblown.  We did want to highlight, if I can take you back to the substantive submissions, 379‑380.  I did just want to highlight a couple of things and that is the award itself.


The award itself – sorry, can I take you back to 111, sorry, to start with.  The award already includes an obligation on appointment to identify the duties required, the number of hours required, the rate of pay for each class of duty required and a statement of any additional duties required during the term will be paid for, so that's the first point.


The second point is over that page we've extracted the rates from the current award that identified, that incorporate preparation time and so a basic lecture, one hour's delivery, two hours of associated working time and we make some points that – I'll come back to that.  We also make the point that to the extent that you're doing other activities that require you to have a more detailed knowledge of some of these teaching and learning policies, like preparing course guides or doing unit co-ordination, the award already provides a mechanism for that, which is under the other required academic activity rate and the evidence from people in the proceeding, Doctor Nurka, Doctor Dann from Monash, was that where they do those activities, that they receive a separate payment for them.


We wanted to highlight that the obligation that we're talking about here, to the extent there is one, to familiarise yourself with policies, is not a creature of the award.  It's a creature of policy or contract at its highest and that's a conceptual issue.  It does go to the question of well is it appropriate that you impose award regulation to address essentially a contractual imposition of an obligation, or is it more appropriate that it might be a matter for bargaining or, indeed, a matter for the contract or the policy?


I did want to call out the issue of students.  It's more germane to the question of discipline currency but these allowances, 10 hours at $35 an hour, to read policies or extra pay to familiarise yourself in a discipline that you're already doing your PhD in, those students, of whom the evidence is that over 50 percent of the casuals fall into that bucket, they're not excluded, they're entitled to these allowances.


In relation to discipline – sorry, in relation to policy familiarisation, the students, particularly PhD students, would have some greater familiarity with issues around policies on plagiarism, on assessment and the like than non-students and so there is essentially a level of awareness that would already come to the table.  I wanted to talk briefly about discipline currency.


I'm sorry, and the last point about policy familiarisation is to the extent that policy familiarisation is part of employment, whether it be at universities or elsewhere, the appropriate mechanism, and this is reflected in the bargaining by the NTEU, is to look to induction and the NTEU have negotiated paid induction clauses into a number of enterprise agreements generally on the basis of half day or four hours.


VICE PRESIDENT CATANZARITI:  Mr Pill, do you have a view as to whether the proposed approach on professional and discipline currency are matters that can be included in a modern award pursuant to the Act?


MR PILL:  We say there's a section 156 problem which might be a related issue.  There is a dimension of the payment which attaches to activities that are done potentially outside of the existence of an employment contract and so a typical scenario would be I engaged to teaching to HR management for semester one on a casual basis.  I'm not engaged in semester two.  I'm doing a lot of this so called discipline currency work during the period that I'm not engaged anywhere and what this clause attempts to do is to require the employer to pay for that, including activities that are not actually undertaken during the course of my employment.


That may or may not be the case.  There may be some activities that are undertaken during the life of that employment contract.  To the extent that it has that operative effect, it is difficult to see how that is a matter that can appropriately be the subject of award regulation.  To the extent that your question goes to is it a matter that arises under 139, we haven't raised a jurisdictional problem in that sense.


To the extent that it's a rate of pay, it would seem to potentially be caught but that highlights sort of section 156 problem and we've briefly articulated that from 442 onwards is where we deal – paragraph 442 on page 131, is where we deal with payment for discipline and currency and we deal, I'm sorry, with the section 156 issue earlier.


VICE PRESIDENT CATANZARITI:  That might be a convenient time, Mr Pill, while you reflect overnight on the question the Deputy President's asked.


MR PILL:  Thank you, your Honour.


MR PILL:  The Commission will adjourn until 9.30 tomorrow.

ADJOURNED UNTIL THURSDAY, 30 MARCH 2017                    [3.55 PM]