When the Fair Work Act was introduced in 2009, the Act brought with it an obligation on the Fair Work Commission to carry out four-yearly reviews of modern awards.

The review of the higher education modern awards, namely the Higher Education Industry Academic Staff Award 2010 and the Higher Education Industry General Staff Award 2010, has been happening for some time now and the Commission has received submissions from various parties on a range of issues.

The most significant issue for the higher education industry considered to date has been that of casual employment. It has been proposed the casual employment clause in the higher education modern awards be amended to require:

  • a minimum engagement period of four hours (up from three hours in the current awards)
  • a deeming provision that affects casual conversion rights.

It is this deeming provision that could have the most impact on how institutions engage casual employees.

Firstly, the deeming provision would reduce the service eligibility threshold for casual conversion from 12 months to six months. Secondly, instead of requiring an employer to not unreasonably refuse a casual employee’s conversion to a permanent employee, a casual employee who has worked for more than six months will automatically be deemed to be a permanent employee, and written reasons would need to be provided if conversion is rejected. The proposed model term also sets out provisions dealing with the hours of work that must be offered for non-casual employment and the recognition of prior casual service.

The Commission is yet to make a determination regarding the amendments, with a determination likely in early 2017. Any determination ultimately made by the Commission will have an impact on your institution’s next enterprise agreement. This is because before the Commission can approve an enterprise agreement, it must be satisfied that employees would be better off on an overall basis when compared to the underlying modern award. This is known as the better off overall test, or the ‘BOOT’.

If the proposed amendments are made to the casual employment clause, and your institution’s enterprise agreement does not take into account those amendments, the enterprise agreement may be found to not pass the BOOT, resulting in the need for undertakings to be given or continued negotiations.

It is therefore important you take into account any changes made to the higher education modern awards through the four-yearly review process.