Information Sessions The Australian National University Medical School Simulated Patients

1. Information Sessions The Australian National University Medical School Simulated Patients Casual Employment, the Canberra Clinical School WHAT IS A CASUAL EMPLOYEE?

2. Presenter Bradley Beasley Senior Employment Strategies Advisor –Legal Telephone (02) 6125 0106 Facsimile: (02) 6125 0559 Email: Bradley.Beasley@anu.edu.au Address: Employment Strategies Human Resources Division Building 10B,   Chancelry The Australian National University ACT 0200 Australia

3. Higher Education Workplace Relations Requirements • On 29 April 2005 the Government announced the new Higher Education Workplace Relations Requirements (HEWRRs). • On 3 June 2005, arising out of representations made by Professor Di Yerbury on behalf of the Australian Vice-Chancellors’ Committee the HEWRRs were amended. • On 10 November 2005 the Australian Parliament passed the Higher Education Legislation Amendment Bill (2005), giving effect to the HEWRRs. • The HEWRRs are designed to meet the Prime Minister’s broader workplace relations reforms and has a significant impact on future Higher Education funding eligibility. • For the Australian National University to obtain access to 2006 and future funding the Australian National University Enterprise Agreement 2005-2008 had to be varied to be HEWRR compliant by 31 August 2006.

4. Higher Education HEWRRCompliance • Staff must have a choice in Agreement making, this is by the University offering Australian Workplace Agreements (AWAs) to all staff. • There must be a direct relationships with staff, staff may only be represented by unions if and when they choose, however the University must observe Freedom of Association principals. • The Australian National University had to deliver Workplace Flexibility, Productivity and Performance through its Enterprise Agreement. • The Agreement had to be streamlined to be “principle-based”. • Based on advice from DEST the University had to transfer current detailed clauses to Schedules and/or draft University policy. • As such the ANU no longer has a comprehensive document that addresses the majority of terms and conditions of employment affecting staff.

5. When did the VANUEA come into effect? • On Friday, 17 March 2006 the Australian National University Enterprise Agreement 2005-2008 was set down for Hearing before Commissioner Deegan of the Australian Industrial Relations Commission in Canberra for variation. • Orders were granted by the Honourable Commission giving effect to the ANU Application. • The Varied Australian National University Enterprise Agreement (the VANUEA) came into effect on and from 17 March 2006. • This is the date that impacts on all Fixed Term Employment Agreements, Employment Schemes, RASCEs and Severance Payments (clause 13, 55 and Schedule 1).

6. Genuine Choice Employment Agreement Staff have a genuine choice whether to have there terms and conditions of employment covered by the VANUEA or an Australian Workplace Agreement (AWA), clause 12.1. The Employment Agreement must include: • All the terms and conditions that relate to the staff member’s employment, clause 12.2. • All documentary, or other recorded sources from which such conditions derive, clause 13.1.4. • The duties and reporting relationships have to be documented, clause 13.1.4. • The staff member’s supervisor, clause 16.2. Note: A staff member’s career prospects cannot be adversely affected by their choice to enter into either form of Employment Agreement, clause 12.3.1. In the Agreement: The word “Appointment” has been replace with “Employment”. The words “Employment Agreement” means “Contract of Employment”.

7. Entering into an AWA If a staff member enters into an AWA: • It will override the terms of the VANUEA, clause 5.1; • He or she has 21days from their commencement of employment with the University to consider entering one, clause 12.3.2; • He or she may appoint a Bargaining Agent to negotiate an AWA, clause 12.3.3.

8. Types of Employment The types of employment the University offers are: • Standard, • Part-time, • Fixed term; or • Casual, clause 13 The above types of employment covers both academic and general staff. Note: With respect to the categories of staff the University may employ see Schedule 1. This Schedule is significant for Letters of Offer and Employment Agreements and with respect to what rights staff have when their employment concludes with the University.

9. WHAT IS A CASUAL STAFF MEMBER? It is well recognised that there are two classes of casuals: • Those who are truly casual, those who have no continuing employment relationship; and • Those who are in a continuing employment relationship. Consequently it is the second class that will give grounding to the Commission's jurisdiction.[1] [1]Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385 pp 401-402

10. WHAT IS A CASUAL STAFF MEMBER?continued • Just because an employee is called and paid on a casual rate of pay prescribed under an Award or an Enterprise Agreement is not the ultimate determination.[2] • The termcasual employee is not well defined or as having a precise meaning, it is a colloquial expression[3] and is not capable of exact definition.[4] • Each case will be determined on all the facts and circumstances of the case.[5] [2]Stoker v Wortham [1919] 1 KB 499 pp 503- 504, per SwinfenEady MR [3]Devine v Gediminas 2002] NSWIRComm 38 (12 March 2002) [4]Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385 and see Starke J in Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at p 551 and at 555, where Dixon J at p 555 [5]Knight v Bucknill(1913) 6 BWCC pp 164-165 per Hamilton LJ and see Marshall J of the Industrial Relations Court of Australia in Burcombe v Oldham and others Trading as the Royal Hotel [1996] 71 IR 404. at p 406

11. WHAT IS A CASUAL STAFF MEMBER? continued The Court will give consideration to: • The characterisation of work test: • “The nature of the work; • The way in which the wages are paid; • The amount of the wages; • The period of time over which the employment extends; • The number of hours worked per week; • Whether the employee worked according to a roster system that was published in advance and whether the employment pattern was regular; • Whether there was reasonable mutual expectation of continuity of employment; • Whether notice was required by an employer prior to the employee being absent or on leave; • Whether the worker reasonably expected that work would be available; • Whether the worker had a consistent starting time and set finishing time”.[6] [6]Devine v Gediminas 2002] NSWIRComm 38 (12 March 2002) marking reference to the dicta in Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385

12. WHAT IS A CASUAL STAFF MEMBER?continued The Court will give consideration to: • The characterisation of engagement test:[7] • “No letter of appointment or any evidence of the formation of the contract of employment, [although in the Higher Education Sector Universities are required to offer contracts]; • The employer’s election to offer employment on a particular day or days and when it is offered; • The employee’s election to work; • The uncertainty about the period over which employment of this type will be offered. • The informality, uncertainty and irregularity of the engagement.” [8] [7]Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at p 425 per Moore J of the Industrial Court of Australia [8]Devine v Gediminas 2002] NSWIRComm 38 (12 March 2002) marking reference to the dicta in Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385

13. WHAT IS A CASUAL STAFF MEMBER?continued There is jurisdiction for the true nature of the employment relationship to be determined under the following circumstances: • If it is found that there is a continuing relationship, even if the worker is paid and called a casual;[9] • If the employee is engaged regularly or systematically for a sequence of periods of at least 12months, but for the termination, the employee would have had an expectation of employment.[10] [9]Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385 pp 397-398 [10] S638 (4) of the Workplace Relations Act 1996

14. WHAT IS A CASUAL STAFF MEMBER?continued The casual staff provisions are addressed by the following clauses in the VANUEA: 13, 15, 17, 21.3, 26.3, 33.1, 43, 50.2.6, 52.1, S1.2.4, S3.2.3, S3.2.4, S3.3.7, S4.4.2.

15. The Varied Australian National University Enterprise Agreement 2005-2008 The VANUEA may be found on the ANU Staff website: http://info.anu.edu.au/hr/Salaries_and_Conditions/Enterprise_Agreement/2005-2008_HEWRR/index.asp

16. Employment Strategies Branch Staff Contacts • Linda Cooke, Acting Head Phone: 6125 3562 Email: Linda.Cooke@anu.edu.au • Bradley Beasley, Senior Employment Strategies Adviser – Legal Phone: 6125 0106 Email: Bradley.Beasley@anu.edu.au • Paula Goodwin, Senior Employment Strategies Advisor Phone: 6125 4738 Email: Paula.Goodwin@anu.edu.au • Sue Hogg, Senior Employment Strategies Advisor Phone: 6125 0086 Email: Sue.Hogg@anu.edu.au • Beth Guernsey, Employment Strategies Advisor Phone: 6125 3400 Email: Beth.Guersney@anu.edu.au • Yvette Jones Senior Employment Strategies Advisor Phone: 6125 7139 Email: yvette.jones@anu.edu.au • Katarina Heineback, Employment Strategies Advisor Phone: 6125 5903 Email: Katarina.Heineback@anu.edu.au • Indigenous Australian Employment Coordinator Position Vacant • Beth Rothe, Aboriginal & Torres Strait Islander Employment Adviser Phone: 6125 5981 Email: beth.rothe@anu.edu.au