Fair Work Act 2009

s 157―FWC may vary etc. modern awards if necessary to achieve modern awards objective

Review of fixed-term contract provisions - Higher Education Awards

Modern Awards Review 2023-24 - fixed-term contract provisions - Higher Education Industry - Academic Staff - Award 2020 - Higher Education Industry - General Staff - Award 2020 - modern awards to be varied.

[1] In our statement dated 30 September 2024 (September 2024 Statement)[1] we initiated proceedings on the Commission's own motion to review fixed-term contract provisions in the Higher Education Industry - Academic Staff - Award 2020 and Higher Education Industry - General Staff - Award 2020 (HE Awards).

[2] The Modern Awards Review 2023-24 Final Report (Final Report)[2] indicated the Commission would commence proceedings to review fixed-term contract provisions in HE Awards in light of amendments made to the Fair Work Act 2009 (Cth) (FW Act) by the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act).[3] These amendments are detailed in the September 2024 Statement at paragraphs [3]-[5].[4]

[3] The matter was listed for an initial hearing on 25 October 2024 before Deputy President Slevin to consider the provisional list of issues as detailed at paragraph [13] in the September 2024 Statement.[5]

[4] Prior to the hearing the Commission received submissions from the Australian Higher Education Industrial Association (AHEIA)[6] and from the Australian National University, La Trobe University, Monash University, Queensland University of Technology, the University of Sydney, University of Newcastle, University of New South Wales and University of Queensland (collectively, the Universities).[7] The submissions received generally accepted the list of provisional issues as appropriate for consideration by the Full Bench. As detailed in our statement dated 1 November 2024 (November 2024 Statement),[8] the parties also proposed the Full Bench consider, as a preliminary issue, the proper construction of ss 333E and 333F of the FW Act.[9] The Universities also made submissions on 25 October 2024 that included a minute of proposed orders.

[5] In accordance with the request from parties as detailed in our November 2024 Statement,[10] three conferences were held before Commissioner Tran on 14 November 2024, 21 November 2024 and 13 December 2024. These conferences were held to seek consensus on confining the issues to be determined by the Full Bench and to consider the preliminary issue raised by the Universities.

[6] Following the conferences conducted by Commissioner Tran the parties reached an agreement on consent variations to the HE Awards.

[7] The proposed variations by the parties were to insert a new subclause into the HE Awards to clarify the operation of fixed-term contracts considering the changes to the FW Act made by the SJBP Act.

[8] The proposed variations by the parties were as follows:

Higher Education Industry - Academic Staff - Award 2020

11.3 Interaction between the Award and Division 5 of Part 2-9 of the Act

(a) the exception will operate in respect of a contract of employment only where that particular contract falls under the terms in clause 11.2(b) of this Award;

(b) where clause 11.2(b) of this Award does not apply in relation to a particular contract of employment section 333F(1)(h) does not operate to provide an exception to the limitations in section 333E(1).

Higher Education Industry - General Staff - Award 2020

11.4 Interaction between the Award and Division 5 of Part 2-9 of the Act

(a) the exception will operate in respect of a contract of employment only where that particular contract falls under the terms in clause 11.3 of this Award;

(b) where clause 11.3 of this Award does not apply in relation to a particular contract of employment section 333F(1)(h) does not operate to provide an exception to the limitations in section 333E(1).

[9] The Full Bench has considered the proposed consent variations by the parties. We are satisfied that the wording addresses the issues raised in the Final Report that gave rise to the September 2024 Statement. However, the Full Bench considers that the proposed variations are better expressed as notes in the HE Awards. The proposed wording clarifies the operation of the Award in light of the changes to the legislation without changing the operation of the Awards.

[10] Accordingly, the Full Bench intends to vary the HE Awards by inserting a note under the respective "Fixed-term employment" clauses rather than inserting a new subclause into each award.

[11] The Commission intends to insert a note into the HE Awards to read as follows:

NOTE: For the purpose of section 333F(1)(h) of the Act:

(1) the exception will operate in respect of a contract of employment only where that particular contract falls under the terms in clause X.X of this Award;

(2) where clause X.X of this Award does not apply in relation to a particular contract of employment section 333F(1)(h) does not operate to provide an exception to the limitations in section 333E(1).

[12] The specific wording of each note is in the terms proposed by the parties, as detailed above at paragraph [8].

[13] In accordance with the proposal of the Full Bench, the Commission issues draft determinations for the Higher Education Industry - Academic Staff - Award 2020 and the Higher Education Industry - General Staff - Award 2020 with this statement_._

[14] Interested parties are invited to comment on the proposal by the Full Bench and the draft determinations issued. Submissions should be emailed to awards@fwc.gov.au by 12.00pm (AEDT) on 3 March 2025.

[1] [2024] FWCFB 389.

[2] Fair Work Commission, Modern Awards Review 2023-24 (Final Report, 18 July 2024).

[3] Fair Work Commission, Modern Awards Review 2023-24 (Final Report, 18 July 2024) at [64]-[69].

[4] [2024] FWCFB 389 at [3]-[5].

[5] [2024] FWCFB 389 at [13].

[6] Australian Higher Education Industrial Association, Submission, dated 18 October 2024.

[7] Australian National University and others, Submission, dated 18 October 2024.

[8] [2024] FWCFB 414.

[9] [2024] FWCFB 414 at [2].

[10] [2024] FWCFB 414 at [3].

Printed by authority of the Commonwealth Government Printer