Who is The Fox?
Welcome to the first issue of The Fox for 2021. Shockingly, the chores of late 2020 followed us to 2021, meaning that this issue is reaching you a little later than we’d hoped. But it’s in your inbox now and that’s what matters most. Enjoy.
Do you have something to contribute or something you’d like us to talk about? Write to The Fox’s editorial team at cupuw.newsletter@gmail.com
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In April CUPUW will be hosting ‘What Casuals Want: Getting Organised for Bargaining and Beyond’, a national, two-day online summit bringing together casual workers across the higher education sector. This will be an unprecedented meeting, run by casuals, for casuals, to collaborate on an agenda for bargaining and a vision of the higher education sector beyond 2021.
2020 saw casual higher education workers organising to win back pay, and putting the systemic wage theft in our sector in the media spotlight. This year workers are bargaining with universities intent on further austerity in response to the COVID-19 pandemic. Tens of thousands of workers have already lost their jobs. Casuals need to be well-prepared for bargaining in this context, starting with what we want from our union and our universities.
When
Friday 9th April 2021, 1pm - 5pm
Saturday 10th April 2021, 10am - 3pm
Where
Online - Link TBA
Who should attend
All casual, fixed term and unemployed university workers. Come as you are, or in a team with the rest of your local Casuals Network.
How to get involved
If you’d like to be involved in planning the summit, please email: CUPUW@protonmail.com.
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2020 was a big year for the NTEU. Last year we saw a diabolical Jobs Protection Frame (JPF) campaign pursued by the National Executive that, ironically, produced more rank-and-file engagement than we’ve seen in a long time. Thousands lost their jobs in a once-in-a-generation crisis which is yet to run its course. Elections were delayed to 2021: a year in which many branches will renegotiate their enterprise agreements. CUPUW is working hard to make sure casual and precarious university staff are not side-lined in enterprise bargaining.
CUPUW is made up of union members. We make our unionist politics and genuine engagement with the NTEU clear, in our meetings, our communications, and our daily Branch-level interactions. Collective action and participatory unionism is our only way through this mess. We try to be the union we want to see: inclusive, centring vulnerable workers and organising (rather than just advocating with an occasional dose of mobilising), fair, transparent, accessible, democratic, and not afraid of a fight. Still, there’s space for some constructive criticism of the NTEU, as elections come up. We deserve and will demand much better from our union leadership. Here’s some of the issues with the NTEU as we see them.
- Member lists are locked up by the National Executive, who cite obscure privacy concerns (even though members willingly give their contact details to the union, expecting the union to be in touch with them). Without access to these lists, delegates are unable to call local area meetings and instead need to appease paid staff who effectively act as gatekeepers to member activity. This is a waste of energy, resources, and it’s enormously disrespectful to delegates who volunteer their time to organise their workplaces. (Think about this, too: casual delegates work entirely for free, they don’t get any leave to do union activity. Why, then, are they fighting their own union to try to make it better?)
- The NTEU has a problem with democracy and it begins at the top. In its 28-year history, the NTEU has had only three national Presidents and just two General Secretaries. Unsurprisingly, the notion of term limits remains unpopular with our comfortable leadership. The closely knit National Executive sets the tone for the branches of the union where vacant positions are often filled ‘casually’ and then when elections are held, many positions are uncontested. Positions usually remain occupied by incumbents, many of whom are often hand-picked by other branch committee members or presidents.
- Stagnant leadership further institutionalises the model of service unionism, where the interests of the longest-serving and highest-paying members are prioritised at the expense of the most vulnerable members and real union organising. This leadership cohort seems to regard an active and engaged membership as a threat to the status quo, as evidenced by attacks on groups like our own. Anti-democratic tendencies lead to lacklustre member engagement, disenfranchising those who might productively occupy positions at the branch, division and national levels.
- It’s not been easy to change this leadership. In 2020, we saw all scheduled NTEU elections delayed, while crucial decisions were made in a dangerous time for universities. In 2021, many branches will start their next bargaining round prior to the elections that were carried over from 2020, meaning workers will be represented by union leadership that they have not had their say in electing according to the agreed schedule. This is not acceptable.
- Finally, and of huge importance to us as casuals, is the fact that in its present composition, the NTEU does not reflect the reality that the most workers in higher education are in insecure employment. We need to support these workers to become elected officials in the union, beyond the single ‘casual representative’ role which now exists for some branch committees, as these people are often expected to represent thousands of workers at a single branch. To genuinely represent the sector, the union needs to centre and meaningfully represent insecure workers.
What can you do?
If you’re a casual, unemployed or otherwise precarious university worker, reach out to your Casuals Network or to CUPUW for support, solidarity, or to lend a hand. Meet fellow workers in your area and ask what’s going on with their working arrangements. If you’re a permanent member of staff, learn about what’s going on in your area and take a risk for your precarious colleagues. Ask your NTEU organiser what they’re doing to support casuals. Ask your Industrial Officer how your university’s enterprise agreement could be better for casuals, and what the plan is for bargaining to achieve results. If you’re a union delegate, ask your branch staff for a contact list of workers you represent, and ask more questions if they refuse. Sign up to our newsletter, as well as Fightback and NHEAN updates. Engage in your union before you, personally, have a problem—otherwise you’re endorsing the job insurance model. Run as a candidate in union elections or encourage someone you know to. Vote for people committed to making this better for all of us. Talk to your students about conditions at your university: staff working conditions are student learning conditions.
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As a ‘meta network’, CUPUW made a submission to the Senate Education and Employment Legislation Committee urging them to reject the government’s Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020. Our main criticisms of the bill’s casual provisions are summarised here.
- The bill’s definition of casual employment (discussed further in the following article) will make it easier for employers to fend off claims for back-pay from long term or regular casual employees, reducing the liabilities involved in abusing casualised labour and, thus, encouraging greater casualisation of the workforce.
- The proposed casual conversion mechanism to be inserted into the National Employment Standards will likely fail to provide insecure workers with a substantial and stable pathway to continuing employment. While this proposed mechanism obliges employers to convert casuals who meet certain criteria, ‘reasonable grounds’ caveats offer employers a wide remit not to convert.
- The proposed criminalisation of underpayment establishes a very high bar to prove criminal wrongdoing. To secure a prosecution, it must be shown that the defendant acted in a way that is dishonest according to the standards of an ‘ordinary person’ and that they knew themselves to be acting dishonestly according to such standards. In contrast, the Victorian Wage Theft Act 2020 (which the bill’s provisions would override) only demands that the defendant be shown to have acted dishonestly according to the standards of an ordinary person.
- The bill’s proposal to allow only casual employees who have work during the ‘access period’—that is the period during which voting on an enterprise agreement occurs—to vote on enterprise agreements obviously has the potential to severely curtail casual workers’ participation in enterprise bargaining.
These are the main, but not only, concerns raised in CUPUW’s submission. You may find the submission here and, while you’re there, we urge readers to look at some of the other submissions too.
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Often, meetings between union officials and members devolve into information sessions about what legal rights different classes of employees have. Full-time staff have rights to, for example, notification of termination of employment and, thus, the union can advocate for them if they have been terminated without proper notification. Casual staff are not entitled to notification of termination of employment, meaning that the union cannot advocate for them if they have been terminated without notice: such treatment of precarious employees is deemed a regrettable managerial prerogative and the discussion moves on.
While such an outcome is obviously highly unsatisfactory for the casual members in our imaginary meeting (they’d be justified in regarding their union as essentially useless in this instance), it is often stated that legal rights are the basis of advocacy. If so, how are such rights a sound basis for advocating within highly fragmented workforces, such as those staffing universities, in which some employees have rights that many of their colleagues can only dream of possessing?
Alongside much hand-wringing about the evils of insecure work, one response of the union movement to this problem has been to fight legal battles to expand the rights of insecure employees. The idea, presumably, is to strengthen the legal foundation upon which advocacy rests. These efforts have met with some success, with federal court cases WorkPac v Skene in 2018 and WorkPac v Rossato in 2020 establishing that some ‘long-term’ or ‘regular’ casuals are ‘other than casual’ and, thus, ought to receive entitlements that casuals don’t get under the Fair Work Act 2009, despite the inclusion of casual loading in their wages. Many exploited insecure workers may claim back-pay for untaken and accrued entitlements. Employer groups baulked at these decisions and the High Court has granted WorkPac special leave to appeal Rossato.
The expanded, if still fuzzy, legal rights of casual workers established by Skene and Rossato will likely be a temporary legal phenomenon. The government’s industrial relations omnibus bill—which, you can call me a sceptic, will probably be passed (with some amendments) by Parliament—proposes a statutory definition of casual employment that favours employers, effectively allowing the descriptor of ‘casual employee’ at the point of engagement to supersede the actual employment relationship in determining employees’ ‘casualness’. If (when) this bill passes, it’s unlikely that long term or regular casual employees would be able to seek ‘other than casual’ status and the expanded industrial rights that come with it. Indeed, the government’s amendments to the Fair Work Act will probably see the expansion of insecure work in Australia.
The probable overriding of these federal court decisions is revealing. While most mainstream unions contain deep reservoirs of (expensive) legal knowledge, they are not well-placed to shape the law in workers’ favour. Yes, they may succeed in changing some unjust laws. On the other hand, business elites and their representatives in government may change the law again (and in their favour) with relative ease, effectively tossing years of legal toiling into a sunless pit.
While arguably the existing legal framework may never be used to workers’ advantage because the law’s a manifestation of underlying inequalities that must be shattered first, it’s obviously not wrong for unions to represent their members in court. What many mainstream unions are guilty of, however, is a heavy focus on advocacy, leveraging legal rights, and trying to change ‘bad laws’ through litigation and, of course, making political donations to their preferred political party. Such an advocacy-based approach is severely misguided because, at the very least, it overestimates unions’ abilities to produce substantial and lasting legal change under neoliberal political-economic regimes and, at the same time, it de-centres workers as the source of worker power by neglecting to organise proper workplace structures.
Casual provisions are a relatively small portion of the government’s omnibus bill. The proposed amendments to the Fair Work Act seek to reform the industrial relations system by decentralising industrial negotiation to enterprise level on terms decisively favourable to the employer. The Australian Council of Trade Unions is obviously terrified, presumably because its advocacy approach is shaped to interact with the existing centralised system governing employee-employer relations. After all, this system, with all its faults and inequalities, is as much the child of mainstream unions as it is employers and their advocates. It is surely time that we recognise the severe limitations of advocacy as a union approach, and put more resources into organising our workplaces.
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CUPUW organises on stolen Indigenous lands across the continent. We acknowledge and pay our respects to Indigenous elders, past and present. We also acknowledge that these lands have always been places of learning, teaching and research. Sovereignty was never ceded.
Always was, always will be, Aboriginal land.
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