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Episode 15: The 'everyone is on leave' episode image

Episode 15: The 'everyone is on leave' episode

S1 E15 · My Union Wrote an EBA
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185 Plays1 year ago

In this episode, Kate & Tony give an update on bargaining and the most recent industrial action and then talk to labour lawyer and NTEU Industrial Officer Jacob Debets who explains the verdict we recently received in the Fair Work Commission case (spoiler: we won!) and where we go from here. 

If you have questions about the process you'd like answered, or any topics you would like to hear covered on the podcast, drop us an email at [email protected]

You can also stay up to date with everything happening with bargaining at our new bargaining website, and with the branch on Facebook and Twitter. All of which can be found here - https://linktr.ee/myunionwroteaneba

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Transcript

Introduction to Enterprise Bargaining at Monash

00:00:18
Speaker
G'day, everyone, and welcome to My Union Road and EBA. This is a podcast to chronicle the progress towards a new enterprise bargaining agreement at Monash University and is brought to you by members of the Monash branch of the NTEU. We're here to take the old agreement and hashtag change it. And unlike our namesake, my dad wrote a porno, do everything we can to avoid being fucked in the process.

Acknowledgement of Traditional Custodians

00:00:41
Speaker
Those involved with the podcast would like to acknowledge that it is being recorded on the unsaid lands of the Kulin nations,
00:00:47
Speaker
on whose lands we live, teach, and work. We would like to acknowledge and pay our respects to the traditional custodians and elders past and present, and to the continuation of the cultural, spiritual, and educational practices of Aboriginal and Torres Strait Islander peoples. Always was, always will be, Aboriginal land.
00:01:08
Speaker
Hello, everyone.

Hosts and Team Dynamics

00:01:09
Speaker
Welcome to the Everyone Is On Leave episode of the podcast. Both Adam, who are usually here doing the stats at the start of every episode, and Pod Daddy Sophie over on Leave at the moment, which has left Kate and I to do both the stats and the editing of the podcast this week. I promise for the next one. Everyone will be back on board, but on to the stats.
00:01:29
Speaker
All right, so it has been 356 days since the expiry of the old enterprise agreement, in which time the VC has raked in $1,339,628, which is just a phenomenal amount of money, really.

Vice-Chancellor's Departure and Pay Offer Rejection

00:01:45
Speaker
Speaking of our VC, there's 44 days until she leaves us for a plum new gig as the 30th governor of Victoria, where she will take a pay cut of around a million dollars a year, but at least from what I can tell, it involves her doing bugger all, and she won't have to worry about scamming to steal wages from thousands of her employees, and conspiring to make our lives all around more miserable. And who knows, in her new role as governor, she can technically fire the premier, so maybe that's the job she has her eyes on next.
00:02:13
Speaker
So coming back to Monash, this week we want to give a handful of updates about things that have been happening around the place. So the first is the bargaining update. As many of you may have seen in the bargaining update email that was sent out a couple of days ago, in the most recent bargaining meeting we officially rejected the university's pay offer.
00:02:31
Speaker
You might remember that the VC sent out an all-staff email a while back and offered us a 4% pay rise this year, and then another 3% in 2024 and 2025. The bargaining team told the university that 4% isn't enough. CPI in Melbourne was 8% last year, meaning that in real terms, our pay went backwards. If it's fine to give the VC a 12% pay rise, they should at least be able to meet our proposal of CPI plus 1.5%.

Stalled Negotiations and Inadequate Offers

00:02:58
Speaker
We are fundamental to this place.
00:03:00
Speaker
We are the university and we should have pay rises that reflect that. On other matters in bargaining, progress continues to be slow as the number of things that we are waiting to hear back from the university about continues to grow longer with every passing meeting. They need to stop dragging their feet and start coming to the table with some real meaningful changes that address the fundamental issues that we have raised and the clauses that we have put forward.
00:03:23
Speaker
The last couple of weeks have also seen the continuing trend of the VC's all-staff emails where she communicates things as though they're already agreed upon by everyone, when in reality they're things that HR have just put forward as proposals in bargaining meetings, like the pay offer that we just rejected.
00:03:39
Speaker
This time it was to announce some new jobs. Their offer was 120 new jobs, which isn't nothing, but is a paltry number compared to the thousand that we proposed and also compared to the roughly three and a half thousand casual academic staff at the university. There's also nothing in their proposal about conversion for current casual staff, which is a core part of our proposal.
00:04:01
Speaker
emails also full of smoke and mirrors to make it look like a much more significant commitment than what it actually was by coupling the talk of the 120 full-time positions with the 450 PhD roles, which can be as low as 0.1 full

Protests and Staff Conditions at Monash

00:04:16
Speaker
-time equivalent.
00:04:16
Speaker
In other updates, a couple of weeks ago now, we had action outside the library, the two hour stop work specifically targeted to the library as a way of drawing attention to how cooked all of the stuff at the library is. They have lost dozens of staff that have been forced out of their jobs through restructures in the last couple of years and their conditions continue to deteriorate. And we wanted an opportunity to be able to speak to that and to be able to hear.
00:04:41
Speaker
from some of the people at the library, one of which Warren who got up and gave a bit of a speech on the day. We also made a stack of pancakes that we handed out to staff and students. And speaking of students, students once again showed up in big numbers to show solidarity and to demonstrate that they understand much more than University of Management seems to, that our working conditions are student learning conditions and that those two are fundamentally coupled to one another.
00:05:04
Speaker
Yeah, it's always so great to see students out on the picket line. So thanks to all the students that showed up. And really, the more we push, the more they move. We have seen that with the petition for the pay rise last year, the level of communication coming out of management about bargaining and the way they feel they're talking around us through all staff emails.
00:05:25
Speaker
If we weren't having an effect, they wouldn't feel the need to do that. So we keep pushing in every way we can, at every opportunity that we get. So that's why we do things like coffee stalls, put up posters, and that's why we talk to members. That's why we take industrial action. That's why Tony and I are doing this podcast. That's why we'll all be out in force on Open Day, come August 5th and

Legal Actions for Wage Recovery

00:05:47
Speaker
6th.
00:05:47
Speaker
It's also why, when necessary, we launched federal court action against the university to try and recover stolen wages. In recent years, this has returned tens of millions of dollars to staff from universities across Australia. Monash is no exception to this, having been forced to repay $8.6 million already in a wage theft case that was spearheaded by the Monash Casuals Network.
00:06:08
Speaker
But that case was the result of only one form of wage theft experienced by Monash employees stemming from the misclassification of teaching activity. By our count, there's at least three or four other types of wage theft that are in different stages of being investigated by the union with a cumulative total of potentially many times the amount that Monash has already paid out for its workers. The one thing that is furthest along is the consultations case that we spoke about in the last episode.
00:06:35
Speaker
You may have seen that we've now gotten a verdict in the case and that we won. So to talk us through the verdict, what it means and where we go to next. We have a good comrade, Jacob DeBets. How you going, Jacob? Want to start off by giving yourself a bit of an intro, who you are, how you came to be involved with the NTU and that kind of thing? Absolutely. Thank you for having me, Kate and Tony. My name is Jacob.

Casual Staff Payment Issues

00:07:01
Speaker
I'm an industrial officer and lawyer based at the
00:07:04
Speaker
NTU's Victorian division. The NTU is my old union when I was a student and staff member at the University of Melbourne in the law school and I was fortunate enough after working in the private sector to get a job as an industrial officer at the union a couple of years ago and a large part of my job has been strategic disputes and litigation and perhaps unsurprisingly that has largely revolved around casual underpayments in the university sector.
00:07:32
Speaker
Monash is just one of the many cases that are running at the moment, but it's probably been the weirdest. I can say that with some, same, some confidence that it's been the weirdest. It is really confusing and I find it really confusing as well. So like with that in mind, Jacob, can you give us a recap of why we were at the Fair Work Commission in the first place? Yes. So as you both know, as, as people who are involved in the initial organizing effort around this consults issue in late 2021,
00:08:00
Speaker
Some of our casual members began talking about the fact that they were being directed to undertake student consultation, but not being separately paid for it. The university was saying inconsistent things, but for a lot of our activists, they were essentially being told that this consultation, which was scheduled in advance and often happening on days other than when classes were being delivered, was work that was associated with tutorial delivery.
00:08:26
Speaker
these members organised around that issue, held workplace meetings, eventually rounded up the flagpole to the boffins in the union to have a look at what the enterprise agreement required the university to do. And we agreed with the casuals that this work should be separately paid. We worked with those casuals to collate evidence, basically put a formal demand to the university to back pay staff for
00:08:55
Speaker
work which was unpaid and we said represented wage theft and the university didn't take that opportunity to resolve this issue.

Legal Tactics and Agreement Changes

00:09:04
Speaker
What a surprise. So in September last year, we filed a federal court case basically seeking for this money to be backpaid, but also seeking some fairly significant penalties against the university because in the union's view, these breaches of the agreement were systemic and serious and represented pretty spicy conduct
00:09:25
Speaker
that ought to be penalised. So we made that application and right away the university engaged in what I'll diplomatically call creative tactics in response to that application. Firstly, they filed a dispute in the commission, which basically sought to require the Fair Work Commission to construe the relevant provisions of the agreement. They eventually abandoned that application after we
00:09:54
Speaker
filed some interlocutory applications seeking for it to be struck out and then they landed on a different application under otherwise obscure provision of the Fair Work Act section 217 which allows parties to apply to the Commission to vary agreements which are ambiguous or uncertain. This was quite a novel tactic. Ordinarily 217 applications are relatively boring. They're for things like where parties
00:10:19
Speaker
use words in an agreement that don't make a lot of sense or are internally inconsistent or there's cross-referencing errors and very often those applications are made by consent of both parties. What Monash attempted to do here represented quite a radical application of that provision because they were seeking to retrospectively change the agreement in such a way that it would knock out one half of our federal court proceedings. So they were seeking to insert a new provision in the agreement which stated
00:10:46
Speaker
for the avoidance of doubt, the university could direct people to undertake scheduled consultation within a week of tutorial delivery, and that that was not something that they had to pay staff separately for. So it was basically they read our federal court application and then sought to insert words that would get rid of that or neutralize that application as it related to that enterprise agreement. So it would have knocked out about one half of our federal court claim. So what ended up being the result of their creative application of the law?
00:11:15
Speaker
So, thankfully, they were not successful. They were not able to persuade the Fair Work Commission to retrospectively vary the agreement. It was a case if they had been successful really could have been quite catastrophic for workers in unions across the country. We all read the newspapers and see literally every day there's another large corporate institution or public institution which has admitted to underpaying its staff sometimes in the order of hundreds of millions of dollars.
00:11:45
Speaker
So we were pretty fucking scared of what it would mean. But we were able to successfully marshal enough evidence to demonstrate that it would not be appropriate in all the circumstances for the Commission to exercise its discretion to vary in agreement, which it did find was ambiguous or uncertain. So that part of the case we didn't win. But the Commission wrote a relatively strident, probably isn't the right word, but it was a fairly strong decision coming out
00:12:12
Speaker
against the university's application. It had regard to a number of variables, including the fact that none of the university employees who were affected by the application supported it. So there were lots of procedural issues that had to be resolved between the parties and that they had their own sort of procedural hearings which needed to
00:12:32
Speaker
which were dedicated to dealing with those issues. But all staff had to be contacted who were affected by the application. About 200 of them responded resisting the application. No employee supported it. The university wasn't able to provide any evidence that there was a common intention that the parties didn't want this work to be compensated in the way that the union said that it needed to. It had regard to the fact that bargaining is underway for a new agreement. There's sort of an implication that it would be inappropriate for the commission to intervene.
00:13:02
Speaker
and retrospectively change an agreement when that's being discussed between the parties. Notes that the timing of an application for variation, including whether there's been a delay relevant to whether discretion should be exercised. And probably most importantly, and probably something that hasn't been picked up as much as it should have in the commentary around this decision, the university was arguing for the commission to have an unfettered power to change enterprise agreements retrospectively.
00:13:27
Speaker
And the commission comes out quite strongly in saying that that is not a power that the commission has. But just to unpack what that argument would have meant, what the university was saying should be the power of the commission. That if there's an agreement that's unclear, the commission should basically have carte blanche power to change workers' entitlements. Quite an extraordinary argument. The kind of thing that you might expect from like Woodside or, you know, the Coke industries in America.
00:13:53
Speaker
but not something that you would expect a public institution like a university to be arguing. So, sorry, that's a long winded answer. But yeah, that's, that's what the commission said about their arguments and that hopefully will discourage other employers from attempting to adopt these creative tactics.

Potential Appeal and Settlement Encouragement

00:14:14
Speaker
Yeah, absolutely. That's an astonishing argument that's being put forward by Monash.
00:14:18
Speaker
And also just as a side note as well, if we have any of those 200 people that wrote letters to the commission to support the union side, just like to say thank you. That was a really big help to have 200 people supporting the union side and not have anyone submit anything in favor of the university side, really, really helped the case. So thank you to everyone who did that.
00:14:43
Speaker
So Jacob, where do we go from here? The university can still appeal the decision, right? Correct. So they have 21 days from the date of judgment to decide whether or not they want to lodge an appeal. So the decision was issued on the 7th of June, so they have until the 28th to lodge that appeal. We haven't heard from the university since that time. They haven't given an indication about whether or not they expect to exercise that right. It is probably worth noting that it's very cheap to appeal and very often
00:15:12
Speaker
employers do appeal these kinds of decisions. So we'll know in a week as to whether or not they're going to exercise that option. So we'll probably wait until that happens and then we will write to the federal court and seek that the matter be brought on for the substantive union application. And then that federal case, it's not like a result will come quickly from that, is it? Not like we're suddenly at the finish line now that we're potentially, fingers crossed, hopefully done with the Fair Work Commission part of this.
00:15:40
Speaker
That's right. Yeah. Federal court litigation ordinarily takes more than a year in simple cases. So we wouldn't expect to have an outcome in that case for possibly until 2025. So that will be a long slog. Will in the interim continue to encourage the university to settle the matter? It's totally within their power to conduct an audit of all of these unpaid consultation hours and pay it back. They've done it before in relation to other forms of underpayment and they can do it again here. That would obviously be.
00:16:08
Speaker
best for the staff, it would be a better use of the university's money than continuing to spend it on on lawyers to, you know, put these sorts of disputes in against their own staff.

Next Steps and Penalties Discussion

00:16:19
Speaker
But we expect that we will be back in the federal court and we'll have to fight it all the way, both
00:16:24
Speaker
And the upside of that is if we win, we'll not only get the money, we've got a chance of being able to seek penalties against the university, which is a really important normative tool that, you know, as a union, we need to hold them accountable to. So that's the silver lining if they don't settle it. And so that'll take the form of a fine or something like that, right? Yeah, exactly. So it's a civil penalty provision, breaching an enterprise agreement.
00:16:48
Speaker
So thank you, Jacob, for coming and explaining all of that to us. If we're still in bargaining in 2025 when the federal court verdict comes down, we'll have you back on to explain that to us as well. But I pray to God that that is not the case. Maybe we'll be back bargaining for the next agreement. Thank you for having me. So that's it for us.
00:17:09
Speaker
for this episode. I just want to end quickly with a pitch for people to get in touch with us for a couple of things.

Closing and Call for Member Participation

00:17:15
Speaker
If anybody out there listening that is a member has ideas for what kind of industrial actions would work well within their particular parts of the university, so within your particular workspace or particular work group, if you think there's something that would be particularly effective, if you could reach out to us and let us know, that would be great. And also, if you might be interested in coming on to talk about what your job looks like,
00:17:39
Speaker
in your part of the university. If that is something you might be interested in, get in touch with us via the email. Yeah, so you can get in touch with us with the email address, myunionroadoneba at gmail.com. And as always, if you have any questions about bargaining or the EA, the Fair Work Commission case or the Federal Court case, just shoot us an email and we will answer your questions on the podcast. Thank you. That's it for this week, everyone. Thanks very much. And we'll see you next time.
00:18:08
Speaker
Alright folks, that's it for this episode. Thanks to Kate, Danny, Adam, Bernard, and Pod Daddy Sofio for all the work they've put into this, and we'll catch you next time.