information sessions the australian national university medical school simulated patients casual...
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Information SessionsInformation Sessions
The The Australian National University Australian National University
Medical School Medical School Simulated Patients Simulated Patients
Casual Employment, Casual Employment, the Canberra Clinical Schoolthe Canberra Clinical School
WHAT IS A CASUAL EMPLOYEE?WHAT IS A CASUAL EMPLOYEE?
PresenterPresenter
Bradley BeasleyBradley Beasley
Senior Employment Strategies Advisor –LegalSenior Employment Strategies Advisor –Legal
Telephone Telephone (02) 6125 0106(02) 6125 0106
Facsimile:Facsimile: (02) 6125 0559(02) 6125 0559
Email:Email: [email protected]@anu.edu.au
Address:Address: Employment StrategiesEmployment StrategiesHuman Resources DivisionHuman Resources DivisionBuilding 10B, ChancelryBuilding 10B, ChancelryThe Australian National UniversityThe Australian National UniversityACT 0200 AustraliaACT 0200 Australia
Higher Education Workplace Higher Education Workplace Relations RequirementsRelations Requirements
On 29 April 2005 the Government announced the new Higher On 29 April 2005 the Government announced the new Higher Education Workplace Relations Requirements (HEWRRs). Education Workplace Relations Requirements (HEWRRs).
On 3 June 2005, arising out of representations made by On 3 June 2005, arising out of representations made by Professor Di Yerbury on behalf of the Australian Vice-Professor Di Yerbury on behalf of the Australian Vice-Chancellors’ Committee the HEWRRs were amended. Chancellors’ Committee the HEWRRs were amended.
On 10 November 2005 the Australian Parliament passed the On 10 November 2005 the Australian Parliament passed the Higher Education Legislation Amendment Bill (2005), giving Higher Education Legislation Amendment Bill (2005), giving effect to the HEWRRs.effect to the HEWRRs.
The HEWRRs are designed to meet the Prime Minister’s The HEWRRs are designed to meet the Prime Minister’s
broader workplace relations reforms and has a significant broader workplace relations reforms and has a significant impact on future Higher Education funding eligibility.impact on future Higher Education funding eligibility.
For the Australian National University to obtain access to For the Australian National University to obtain access to 2006 and future funding the Australian National University 2006 and future funding the Australian National University Enterprise Agreement 2005-2008 had to be varied to be Enterprise Agreement 2005-2008 had to be varied to be HEWRR compliant by 31 August 2006.HEWRR compliant by 31 August 2006.
Higher Education HEWRRHigher Education HEWRRComplianceCompliance
Staff must have a choice in Agreement making, this is by the Staff must have a choice in Agreement making, this is by the University offering Australian Workplace Agreements (AWAs) to all University offering Australian Workplace Agreements (AWAs) to all staff.staff.
There must be a direct relationships with staff, staff may only be There must be a direct relationships with staff, staff may only be represented by unions if and when they choose, however the represented by unions if and when they choose, however the University must observe Freedom of Association principals.University must observe Freedom of Association principals.
The Australian National University had to deliver Workplace The Australian National University had to deliver Workplace Flexibility, Productivity and Performance through its Enterprise Flexibility, Productivity and Performance through its Enterprise Agreement.Agreement.
The Agreement had to be streamlined to be “principle-based”. The Agreement had to be streamlined to be “principle-based”.
Based on advice from DEST the University had to transfer current Based on advice from DEST the University had to transfer current detailed clauses to Schedules and/or draft University policy. detailed clauses to Schedules and/or draft University policy.
As such the ANU no longer has a comprehensive document that As such the ANU no longer has a comprehensive document that addresses the majority of terms and conditions of employment addresses the majority of terms and conditions of employment affecting staff.affecting staff.
When did the VANUEA When did the VANUEA come into effect?come into effect?
On Friday, 17 March 2006 the Australian National On Friday, 17 March 2006 the Australian National University Enterprise Agreement 2005-2008 was set down University Enterprise Agreement 2005-2008 was set down for Hearing before Commissioner Deegan of the Australian for Hearing before Commissioner Deegan of the Australian Industrial Relations Commission in Canberra for variation.Industrial Relations Commission in Canberra for variation.
Orders were granted by the Honourable Commission giving Orders were granted by the Honourable Commission giving effect to the ANU Application.effect to the ANU Application.
The Varied Australian National University Enterprise The Varied Australian National University Enterprise Agreement (the VANUEA) came into effect on and from 17 Agreement (the VANUEA) came into effect on and from 17 March 2006.March 2006.
This is the date that impacts on all Fixed Term Employment This is the date that impacts on all Fixed Term Employment Agreements, Employment Schemes, RASCEs and Severance Agreements, Employment Schemes, RASCEs and Severance Payments (clause 13, 55 and Schedule 1)Payments (clause 13, 55 and Schedule 1)..
Genuine Choice Genuine Choice Employment AgreementEmployment Agreement
Staff have a genuine choice whether to have there terms and conditions of Staff have a genuine choice whether to have there terms and conditions of employment covered by the VANUEA or an Australian Workplace Agreement employment covered by the VANUEA or an Australian Workplace Agreement
(AWA),(AWA),clause 12.1.clause 12.1.
The Employment Agreement must include:The Employment Agreement must include:
All the terms and conditions that relate to the staff member’s All the terms and conditions that relate to the staff member’s employment, clause 12.2. employment, clause 12.2.
AllAll documentary, or other recorded sources from which such conditions documentary, or other recorded sources from which such conditions derive, clause 13.1.4.derive, clause 13.1.4.
The duties and reporting relationships have to be documented, clause The duties and reporting relationships have to be documented, clause 13.1.4. 13.1.4.
The staff member’s supervisor, clause 16.2.The staff member’s supervisor, clause 16.2.
Note: A staff member’s career prospects cannot be adversely affected by their 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.choice to enter into either form of Employment Agreement, clause 12.3.1. In the Agreement:In the Agreement: The word “Appointment” has been replace with “Employment”.The word “Appointment” has been replace with “Employment”. The words “Employment Agreement” means “Contract of Employment”. The words “Employment Agreement” means “Contract of Employment”.
Entering into an AWAEntering into an AWA
If a staff member enters into an AWA:If a staff member enters into an AWA:
It will override the terms of the VANUEA, clause It will override the terms of the VANUEA, clause 5.1;5.1;
He or she has 21days from their He or she has 21days from their commencement of employment with the commencement of employment with the University to consider entering one, clause University to consider entering one, clause 12.3.2;12.3.2;
He or she may appoint a Bargaining Agent to He or she may appoint a Bargaining Agent to negotiate an AWA, clause 12.3.3.negotiate an AWA, clause 12.3.3.
Types of EmploymentTypes of EmploymentThe types of employment the University offers are: The types of employment the University offers are:
Standard, Standard,
Part-time, Part-time,
Fixed term; or Fixed term; or
Casual, clause 13Casual, clause 13
The above types of employment covers both academic and general The above types of employment covers both academic and general staff.staff.
Note: With respect to the categories of staff the University may employ see Note: With respect to the categories of staff the University may employ see Schedule 1. Schedule 1.
This Schedule is significant for Letters of Offer and Employment This Schedule is significant for Letters of Offer and Employment Agreements and Agreements and
with respect to what rights staff have when their employment with respect to what rights staff have when their employment concludes with the concludes with the
University.University.
WHAT IS A CASUAL STAFF WHAT IS A CASUAL STAFF MEMBER?MEMBER?
It is well recognised that there are two classes of It is well recognised that there are two classes of casuals:casuals:
Those who are truly casual, those who have no Those who are truly casual, those who have no continuing employment relationship; andcontinuing employment relationship; and
Those who are in a continuing employment Those who are in a continuing employment relationship. relationship.
Consequently it is the second class that will give Consequently it is the second class that will give grounding grounding
to the Commission's jurisdiction.to the Commission's jurisdiction.[1][1] Ryde Eastwood Leagues Club v TaylorRyde Eastwood Leagues Club v Taylor [1994] 56 IR 385 pp 401-402 [1994] 56 IR 385 pp 401-402
WHAT IS A CASUAL STAFF WHAT IS A CASUAL STAFF MEMBER?MEMBER? continuedcontinued
Just because an employee is called and paid on a Just because an employee is called and paid on a casual rate of pay prescribed under an Award or an casual rate of pay prescribed under an Award or an Enterprise Agreement is not the ultimate Enterprise Agreement is not the ultimate determination.determination.[2]
The termThe term casual employee is not well defined or as casual employee is not well defined or as having a precise meaning, it is a colloquial expressionhaving a precise meaning, it is a colloquial expression[3] and is not capable of exact definition. and is not capable of exact definition.[4]
Each case will be determined on all the facts and Each case will be determined on all the facts and circumstances of the case.circumstances of the case.[5]
[2] Stoker v Wortham [1919] 1 Stoker v Wortham [1919] 1 KB 499 pp 503- 504, per Swinfen Eady MR KB 499 pp 503- 504, per Swinfen Eady MR [3] Devine v GediminasDevine v Gediminas 2002] NSWIRComm 38 (12 March 2002) 2002] NSWIRComm 38 (12 March 2002)[4][4] Ryde Eastwood Leagues Club v TaylorRyde Eastwood Leagues Club v Taylor [1994] 56 IR 385 and see Starke J in [1994] 56 IR 385 and see Starke J in Doyle v Sydney Steel Co Ltd Doyle v Sydney Steel Co Ltd (1936) (1936) 56 CLR 545 at p 551 at p 551
and at and at 555, where Dixon J at p 555555, where Dixon J at p 555[5][5] Knight v Bucknill Knight v Bucknill (1913) 6 BWCC pp 164-165 per Hamilton LJ and see Marshall J of the Industrial Relations Court of Australia in (1913) 6 BWCC pp 164-165 per Hamilton LJ and see Marshall J of the Industrial Relations Court of Australia in
Burcombe v Burcombe v Oldham and others Trading as the Royal HotelOldham and others Trading as the Royal Hotel [1996] 71 IR 404. at p 406 [1996] 71 IR 404. at p 406
WHAT IS A CASUAL STAFF WHAT IS A CASUAL STAFF MEMBER? MEMBER? continuedcontinued
The Court will give consideration to:The Court will give consideration to:
The characterisation of work test:The characterisation of work test: ““The nature of the work;The nature of the work; The way in which the wages are paid; The way in which the wages are paid; The amount of the wages; The amount of the wages; The period of time over which the employment extends;The period of time over which the employment extends; The number of hours worked per week; The number of hours worked per week; Whether the employee worked according to a roster system that was Whether the employee worked according to a roster system that was
published in advance and whether the employment pattern was regular;published in advance and whether the employment pattern was regular; Whether there was reasonable mutual expectation of continuity of Whether there was reasonable mutual expectation of continuity of
employment;employment; Whether notice was required by an employer prior to the employee Whether notice was required by an employer prior to the employee
being absent or on leave;being absent or on leave; Whether the worker reasonably expected that work would be available;Whether the worker reasonably expected that work would be available; Whether the worker had a consistent starting time and set finishing Whether the worker had a consistent starting time and set finishing
time”.time”.[6]
[6] Devine v GediminasDevine v Gediminas 2002] NSWIRComm 38 (12 March 2002) marking reference to the 2002] NSWIRComm 38 (12 March 2002) marking reference to the dictadicta in in Ryde Ryde Eastwood Leagues Club v TaylorEastwood Leagues Club v Taylor [1994] 56 IR 385 [1994] 56 IR 385
WHAT IS A CASUAL STAFF WHAT IS A CASUAL STAFF MEMBER?MEMBER? continuedcontinued
The Court will give consideration to:The Court will give consideration to:
The characterisation of engagement test:The characterisation of engagement test:[7] ““No letter of appointment or any evidence of the No letter of appointment or any evidence of the
formation of the contract of employment, formation of the contract of employment, [although in [although in the Higher Education Sector Universities are required to the Higher Education Sector Universities are required to offer contracts]offer contracts];;
The employer’s election to offer employment on a The employer’s election to offer employment on a particular day or days and when it is offered; particular day or days and when it is offered;
The employee’s election to work; The employee’s election to work; The uncertainty about the period over which The uncertainty about the period over which
employment of this type will be offered. employment of this type will be offered. The informality, uncertainty and irregularity of the The informality, uncertainty and irregularity of the
engagement.” engagement.” [8]
[7] Reed v Blue Line Cruises LtdReed v Blue Line Cruises Ltd (1996) 73 IR 420 at p 425 per Moore J of the Industrial Court of Australia (1996) 73 IR 420 at p 425 per Moore J of the Industrial Court of Australia[8] [8] Devine v GediminasDevine v Gediminas 2002] NSWIRComm 38 (12 March 2002) marking reference to the 2002] NSWIRComm 38 (12 March 2002) marking reference to the dictadicta in in Ryde Eastwood Leagues Club v Ryde Eastwood Leagues Club v
TaylorTaylor [1994] 56 IR 385[1994] 56 IR 385
WHAT IS A CASUAL STAFF WHAT IS A CASUAL STAFF MEMBER?MEMBER? continuedcontinued
There is jurisdiction for the true nature of the employment There is jurisdiction for the true nature of the employment relationship relationship
to be determined under the following circumstances:to be determined under the following circumstances:
If it is found that there is a continuing relationship, even if If it is found that there is a continuing relationship, even if the worker is paid and called a casual;the worker is paid and called a casual;[9][9]
If the employee is engaged regularly or systematically for a If the employee is engaged regularly or systematically for a sequence of periods of at least 12months, but for the sequence of periods of at least 12months, but for the termination, the employee would have had an expectation termination, the employee would have had an expectation of employment.[10]of employment.[10]
[9] [9] Ryde Eastwood Leagues Club v TaylorRyde Eastwood Leagues Club v Taylor [1994] 56 IR 385 pp 397-398 [1994] 56 IR 385 pp 397-398[10] S638 (4) of [10] S638 (4) of the Workplace Relations Act 1996the Workplace Relations Act 1996
WHAT IS A CASUAL STAFF WHAT IS A CASUAL STAFF MEMBER?MEMBER? continuedcontinued
The casual staff provisions are The casual staff provisions are addressed by the following addressed by the following
clauses in the VANUEA: clauses in the VANUEA:
13, 15, 17, 21.3, 26.3, 33.1, 43, 13, 15, 17, 21.3, 26.3, 33.1, 43, 50.2.6, 52.1, S1.2.4, S3.2.3, 50.2.6, 52.1, S1.2.4, S3.2.3,
S3.2.4, S3.3.7, S4.4.2.S3.2.4, S3.3.7, S4.4.2.
The Varied Australian National The Varied Australian National University Enterprise Agreement University Enterprise Agreement
2005-2008 2005-2008
The VANUEA The VANUEA
may be found on may be found on
the ANU Staff website:the ANU Staff website:
http://info.anu.edu.au/hr/Salaries_and_Conditions/Enterprise_Agreement/2005-2008_HEWRR/index.asphttp://info.anu.edu.au/hr/Salaries_and_Conditions/Enterprise_Agreement/2005-2008_HEWRR/index.asp
Employment Strategies Branch Employment Strategies Branch
Staff ContactsStaff Contacts Linda Cooke, Acting HeadLinda Cooke, Acting Head Phone: 6125 3562 Email: [email protected]: 6125 3562 Email: [email protected]
Bradley Beasley, Senior Employment Strategies Adviser – LegalBradley Beasley, Senior Employment Strategies Adviser – Legal Phone: 6125 0106 Email: [email protected] Phone: 6125 0106 Email: [email protected]
Paula Goodwin, Senior Employment Strategies AdvisorPaula Goodwin, Senior Employment Strategies Advisor Phone: 6125 4738 Email: [email protected]: 6125 4738 Email: [email protected]
Sue Hogg, Senior Employment Strategies AdvisorSue Hogg, Senior Employment Strategies Advisor Phone: 6125 0086 Email: [email protected]: 6125 0086 Email: [email protected]
Beth Guernsey, Employment Strategies AdvisorBeth Guernsey, Employment Strategies Advisor Phone: 6125 3400 Email: [email protected]: 6125 3400 Email: [email protected]
Yvette Jones Senior Employment Strategies AdvisorYvette Jones Senior Employment Strategies Advisor Phone: 6125 7139 Email: [email protected]: 6125 7139 Email: [email protected]
Katarina Heineback, Employment Strategies AdvisorKatarina Heineback, Employment Strategies Advisor Phone: 6125 5903 Email: [email protected]: 6125 5903 Email: [email protected]
Indigenous Australian Employment CoordinatorIndigenous Australian Employment Coordinator Position VacantPosition Vacant
Beth Rothe, Aboriginal & Torres Strait Islander Employment AdviserBeth Rothe, Aboriginal & Torres Strait Islander Employment Adviser Phone: 6125 5981 Email: [email protected]: 6125 5981 Email: [email protected]