Fair Work Commission to examine fixed-term employment arrangements in tertiary sector.
The Fair Work Commission (Commission) has announced that it will review the fixed-term employment provisions in the higher education modern awards (HE Awards),1 following new restrictions to fixed-term employment in the Fair Work Act 2009 (Cth) (FW Act) (Review).
The Secure Jobs, Better Pay Act amendments to the FW Act limit the use of fixed-term employment. In summary, employers are prevented from engaging employees under consecutive or lengthy fixed-term contracts exceeding two years, subject to certain exceptions. One exception is if a modern award allows for a fixed-term contract that is otherwise prohibited under the FW Act. The HE Awards permit various types of fixed-term employment and, during the recent Modern Awards Review 2023-24 undertaken by the Commission, the National Tertiary Education Industry Union (NTEU) expressed concern that the effect of the provisions in the HE Awards meant that the arrangements for fixed-term employment in the higher education sector would be significantly more permissive than in the broader economy.2
The Commission agreed that it was appropriate to review the fixed-term provisions in the HE Awards, having regard to the modified legislative scheme now in place following the Secure Jobs, Better Pay Act amendments.
It is noted that employers in the higher education sector are currently exempt from the fixed-term restrictions in the FW Act but will be required to comply with the relevant provisions from 1 November 2025 (following an extension from 1 January 2025).
What is the focus of the Review?
As part of the Review, the Commission has stated that it will consider the following issues:
- whether changes are necessary to the HE Awards to give effect to the new fixed-term contract regime in the FW Act, including the underlying intention to improve access to secure work; and
- if changes are necessary, the amendments required to the HE Awards.
The Commission has also flagged the prospect that it might determine, as a preliminary issue, the scope of sections 333E and 333F of the FW Act, and has listed further conferences this month for consideration of this issue. In short, the NTEU's view is that the effect of the provisions is that none of the restrictions in the FW Act apply to employees covered by the HE Awards (a view with which the Australian Higher Education Industry Association and various universities disagree).
Ultimately, the outcome of the Review has the potential to significantly change permitted working arrangements for fixed-term employees covered by the HE Awards.
What's next?
As noted above, further conferences have been listed this month to discuss the issues raised by the Review, seek consensus on narrowing the issues, and deal with the manner in which the Review is to be conducted.
We will publish updates on the Review as it progresses. You can otherwise follow the progress of the Review here.
1 Higher Education Industry-Academic Staff-Award 2020; Higher Education Industry-General Staff-Award 2020.
2 [2024] FWCFB 389
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