More secure jobs, better pay

15 August 2023

If you weren’t sure how industrial agreements and behind-the-scenes union work affects your day-to-day work, the Albanese government’s changes to the Fair Work Act, built by the union movement, are about to make a massive difference.

“Changing governments changes people’s working lives,” says Maxine Sharkey, AEU federal TAFE secretary and general secretary of the NSW Teachers Federation. “I know that sounds grandiose, but it’s absolutely true. Think about a woman who’s now going to be able to access paid domestic violence leave, even though she’s a casual worker. That will be a game-changer for her.”

Sharkey is talking about recent hard-fought union wins for women, and the changes to the federal government’s Fair Work Legislation – the Secure Jobs, Better Pay Bill that passed parliament in December 2022.

These new laws represent the most significant changes to Australia’s industrial relations system since the start of the Fair Work Act in 2009 – which itself replaced the unfair employer-biased Work Choices legislation of 2005.

It’s not just unions or the government saying that these are momentous changes both to the Fair Work Act and to the workings of the Fair Work Commission (FWC). Since December, human resources departments and industrial law firms around the country have been scrambling to create fact sheets and guidelines for employers about their new contractual responsibilities and duties of care, many of which came into effect immediately, with others coming in from June to December 2023.

It’s been a fast timeline, and Sharkey says that most TAFE teachers, already overworked and trying to adapt to rapid changes and new pressures in the system, won’t yet understand the practical benefits they can extract from the new legislation, especially as it relates to gender equity and casualisation.

Job security and gender equality

At the broadest level, the objectives of the Fair Work Act itself have been changed to include “promoting job security and gender equality”. For TAFE’s highly feminised and casualised workforce, and a national gender pay gap that sits at 22.8 per cent across all industries, these changes bring in benefits that will become clearer in coming years as workers see increased rights to request flexibility, job security and equal remuneration.

Flexible working arrangements can now be requested for conditions such as pregnancy, caring, childcare and disability, and also for being 55 or older. (Women struggling through menopause, take note.) Flexibility can also be requested around experiencing family or domestic violence and caring for someone who’s been a victim of it.

The prohibition on sexual harassment in the workplace now puts the onus on employers to proactively prevent it, where previously it was treated as a type of workplace bullying. The prohibition also applies to non-employees in the workplace – students, volunteers and contractors – and a newly streamlined sexual harassment complaints process has also been brought into the Fair Work Commission to address this.

“Think of a 19-year-old who’s just got an apprenticeship in heavy vehicle mechanics,” says Sharkey. “She’s protected in a way she wasn’t before.”

Other changes that will positively impact women, parents, carers and people of any gender include:

• Prohibiting pay secrecy.
• Extending anti-discrimination protection on three new grounds: breastfeeding, gender identity and intersex status.
• Changes to extending unpaid parental leave, including giving the Fair Work Commission power to deal with such disputes.
• Creation of expert panels at the Fair Work Commission to focus on pay equity in the care and community sector.
• Job advertisements can no longer include pay rates that breach the Fair Work Act or a modern award/enterprise agreement.

Resisting casualisation, bringing back security

One of the biggest impacts for TAFE teachers and TAFE support workers will be around the changes to laws limiting fixed-term contracts to two years, after which employees must be offered permanent employment.

Effective from 6 December, this has the potential to transform employment in all institutions that rely on rolling fixed-term contracts as part of their business model, including public TAFE and university VET programs. These employers will no doubt fight for exemptions and argue the need to maintain a casual workforce, but with increasing scrutiny around wage theft and exploitation – and with this fundamental policy shift towards job security – those employers are finally on notice.

The changes to the Fair Work Act have also outlawed a key bargaining tactic first used by Murdoch University, then adopted by other post-secondary education employers: of terminating or threatening to terminate enterprise agreements as a blackmailing technique to get workers to accept reduced pay or conditions.

Sharkey says that insecure work is the situation for “far more than 50 per cent of the TAFE workforce around Australia”. She says these changes are way overdue and workers deserve the dignity of reliable income and hours.

“At the moment, it’s akin to when you watch old movies and you see people down by the waterside competing against one another, begging to get some work for the day. Teachers might randomly get a phone call to work, and at end of that shift or fixed term, they no longer have a job and need to beg for work.”

Soon however, if you’ve been engaged for two years as a fixed-term employee, your next contract must be offered as a permanent position.

Attracting and keeping teachers in TAFE: the crisis in trades

The opposite problem – of keeping and attracting enough qualified, specialist teaching staff to meet demand in trades – is well-evidenced. Pay rates are often lower than in industry, and teacher turnover is high, especially once new lecturers realise the workload and responsibilities.

John Miles, a veteran Metal Trades teacher at TasTafe in Hobart, sees this problem and says the only way to attract teachers to trades is to offer them a good quality of life that is some compensation for pay, which is essentially going backwards against inflation: flexible conditions, good holidays and genuine support for teaching and administrative tasks.

“There’s been a massive turnover in plumbing, for instance,” says Miles. “They’re going from a high-paid job in industry where they’ve got a vehicle and their fuel’s paid for, and then they come to TAFE and find this huge workload, all this responsibility, and constantly changing goalposts requiring them to upgrade their qualifications – I’ve had to do it four times so far and spent my own free time to complete it. A lot of people just say, ‘nup’ and they leave.”

Adding to the complexity of the Tasmanian workplace – and to Miles’ sense of general unease – is the fact that TasTAFE, as of 1 July 2022, transferred from a state public sector employer to a national system employer under the Fair Work Act. This meant there were two sets of employees on different awards and conditions, with existing “transferring staff” on a 35-hour week, with an extra week of holidays; and new staff on a higher pay rate working a 38-hour week with less generous entitlements and no choice for staff to move between the two.

Examples like this demonstrate some of the complexities of the fragmented national TAFE workforce, and the challenges that will be faced in the revamped Fair Work Commission, with its new powers to resolve disputes quickly. All agreements must now be measured against an updated Better Off Overall Test (BOOT) requiring agreements to have better entitlements for employees than any relevant award.

For Simon Bailey, AEU Tasmania TAFE division president, there’s good reason to hope for sensible, flexible outcomes using this “better off overall test”. In March, Bailey was involved with the successful AEU and United Workers Union (UWU) application to ensure new TasTAFE employees under the Fair Work Act were given the same terms and conditions as the non-transferring employees still under State Public Sector agreements. This came on top of Bailey’s good news in February around the union’s win of significant pay raises, one-off payments and new equipment for TasTAFE education support personnel (ESP).

“A good strong agreement has to be flexible and progressive,” says Bailey. “It has to note that people are working differently these days. In our talks with TasTAFE they didn’t see the need for any of that. But you have to have a good agreement if you’re going to attract and keep good people in the system.”

Attracting and keeping good people in TasTAFE is an emergency, says Bailey, and it was so even before the introduction of the enormously popular Fee-Free places. In 2021/22 TasTAFE advertised 120 teaching positions and 50 were filled, while 114 non-teaching positions were advertised and only 76 were filled. Teachers were working hours far beyond what they were paid and on the verge of burnout.

“The Fee-Free places have only emphasised our need to get more employees into the system to deliver these classes, and more personnel to support these students,” says Bailey.

Flexibility is key

In South Australia, AEU SA TAFE organiser Angela Dean reports similar problems around overwork, understaffing and TAFE SA’s mismanagement of scheduling Fee-Free programs before engaging staff.

But Dean also reports a recent win for employees around flexibility in Mechanical Engineering.

“The employer was seeking to standardise the hours of all lecturers in trades to seven hours a day, five days a week,” Dean says. “This was not what industry wanted or what apprentices needed. We put forth a formal dispute and TAFE SA has taken a step back, so we’ve maintained our compressed work week for lecturers – where they either work a nine-day fortnight, or a four-and-a-half-day week. A lot of our enterprise agreements centre on this flexibility to program delivery, because we need to be industry-based and student specific. We can’t be too standardised – it doesn’t work in any business case.”

It’s early days for the new Fair Work Act, and the empowered Fair Work Commission, but its principles fit soundly with the realities of modern working life, and with the necessary rebuilding of the national vocational education training sector, with TAFE as its anchor.

Rochelle Siemienowicz, freelance writer and editor.

This article was originally published in The Australian TAFE Teacher, Winter 2023