Human Resources Division

Deakin University Enterprise Agreement 2009-2012

Part 2 Employment Arrangements and Termination of Employment

7 Contract of Employment

7.1

The University will employ staff members in a position that corresponds with one of the types of employment set out in clauses 9 to 16 and in accordance with the terms of this Agreement. A staff member may also be offered employment on a senior staff performance contract under clause 18 of this Agreement.

7.2

In addition to being employed in his or her substantive position, a staff member may also be employed as a casual staff member to perform work unrelated to, or identifiably separate from, the staff member's normal duties.

8 Terms of Employment

8.1

When a staff member commences employment at the University, he or she will be provided with a contract of employment which sets out the type of employment that applies to the staff member and also sets out information about the terms of the staff member's employment in relation to:

  1. for staff members other than casual staff members, the classification level and salary of the staff member on commencement of employment and the hours or the fraction of full-time hours to be worked;

  2. for staff members employed on a fixed-term basis, the period and category of the fixed-term employment;

  3. for casual staff members, the duties to be performed, the expected hours of work, the rate of pay and the faculty guidelines on academic marking for casual staff members who will undertake this activity;

  4. for academic staff members, the length and terms of any period of academic probation and for a general staff member, the length and terms of any period of probation;

  5. other main conditions of employment including the identity of the employer and the duties and reporting relationships to apply upon appointment or the documentary or other recorded sources from which these can be ascertained.

8.2

Both academic and general staff members (other than a casual staff member) may be required to serve a period of probation. Additional provisions about probation for academic staff members are set out in clause 17 of this Agreement. Any such period of probation will be a reasonable probationary period that is directly related to the nature of the work to be performed by the staff member. As a condition incidental to employment on probation, a staff member will be advised of and given an opportunity to make response to, any adverse material about the staff member that the University intends to take into account in a decision to terminate the staff member’s employment upon or before the expiry of the period of probation.

9 Full - Time Employment

9.1

A staff member may be employed on a full-time basis. Full-time employment means employment other than fixed-term, part-time or casual employment.

10 Part - Time Employment

10.1

A staff member may be employed on a part-time basis. Part-time employment means employment for less than the normal weekly ordinary hours of work specified for a full-time staff member. Entitlements under this Agreement for a part-time staff member will be calculated on a pro-rata basis by reference to the staff member's ordinary hours of work.

11 Part - Year Employment - General Staff

11.1

A general staff member may be employed on a part-year basis. A part-year general staff member is employed on a continuing basis or for a period of fixed-term employment to work one or more periods in a year (which may be a calendar year). From the commencement of this Agreement, new appointments on a part-year basis will only be made following conversion from a casual position in accordance with Schedule F.

11.2

During the periods of the year that the part-year general staff member is not required to perform work, the staff member's employment will continue. However, with the exception of periods of approved paid leave, the staff member will be deemed to be on leave without pay for periods when the staff member is not required to perform work. These periods will not break the staff member's continuity of service.

11.3

In respect of the periods when the part-year general staff member is working, he or she will be paid on the same basis as comparable, full-time or part-time continuing staff members as the case may be.

11.4

Leave, including recreation leave, long service leave and sick leave will accrue during hours worked by the part-year general staff member. Leave, other than recreation leave and long service leave, will be available to the staff member only during the periods when the staff member is working. The timing of the taking of recreation leave and long service leave will be agreed between the University and the staff member, subject to the provisions of the Fair Work Act 2009.

11.5

A part-year general staff member will be entitled to the benefits set out in clause 43 for all University holidays that fall on the day on which the staff member is required to work. If the University holiday falls on a day when the staff member is on leave without pay, then he or she is not entitled to the benefits set out in clause 43.

11.6

In the event that the employment of a part-year general staff member ceases, for whatever reason, and the staff member has received a payment (howsoever described) in respect of work or hours which are not then worked by the staff member, that payment must be repaid by the staff member to the University as at the date when the employment ceases. If the payment is not repaid, the University may off-set any such amounts against any entitlements owing to the staff member.

12 Annualised Hours Employment - General Staff

12.1

A general staff member may be employed on an annualised hours basis. An annualised hours general staff member is a staff member employed on a continuing basis or for a period of fixed-term employment for a specific number of ordinary hours of work in any one year (which may be a calendar year). From the commencement of this Agreement, new appointments on an annualised hours basis will only be made following conversion from a casual position in accordance with Schedule F.

12.2

Subject to the annualised hours general staff member's terms of the employment, the time and manner in which the staff member's annual ordinary hours of work are scheduled over the year will be at the discretion of the University and can be worked over a period of less than 52 weeks.

12.3

For the purposes of payment, the total number of annual ordinary hours of work to be worked by the general staff member will be averaged to a fortnightly salary.

12.4

An annualised hours general staff member will be entitled to receive pro-rata leave entitlements determined by the number of annualised ordinary hours of work required to be worked. The timing of when the staff member will take recreation leave and long service leave will be agreed between the University and the staff member, subject to the provisions of the Fair Work Act 2009.

12.5

An annualised hours general staff member will be entitled to the benefits set out in clause 43 for all University holidays that fall on a day on which they are scheduled to work. If the University holiday falls on a day when the staff member is not scheduled to work, then he or she is not entitled to the benefits set out in clause 43.

12.6

An annualised hours general staff member will be eligible for the same overtime benefits as a full-time general staff member. In respect of such overtime hours, those overtime hours are in addition to the annualised ordinary hours for which the annualised hours general staff member is employed. There is no accrual of leave entitlements (howsoever described) in respect of the overtime hours worked by the staff member.

12.7

Where in any year, with the agreement of the University, an annualised hours general staff member works in excess of the number of ordinary hours of work in the year for which he or she is employed, the payment for the additional ordinary hours worked will be made in the first available pay period following receipt of a valid claim from the staff member. Any additional ordinary hours worked will be taken into account in the calculation of leave entitlements.

12.8

In the event that the employment of an annualised hours general staff member ceases, for whatever reason, a reconciliation of the ordinary hours worked and the payments (howsoever described) paid to the staff member will be performed and: 

  1. if the staff member has received a payment (howsoever described) in respect of work or hours which are not then worked by the staff member, that payment is repayable by the staff member to the University as at the date when the employment ceased. If the payment is not repaid, the University may off-set any such amounts against any entitlements owing to the staff member; and

  2. if the staff member has performed work with the agreement of the University for which he or she has not been paid by the University, the University will pay to the staff member the outstanding amount as at the date the employment ceases.

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13 Research Continuing Employment (Contingent Funded)

Eligibility13.1

A staff member engaged in contingent funded research may apply for, or be offered, a Research Continuing Employment (Contingent-Funded) contract (RCECF) where the staff member:

  • is 0.5 FTE or more;
  • is an academic staff member who has been employed by the University for a period of 3 years or more, or a general staff member who has been employed for a period of 5 years or more, and who is to be appointed to their second or subsequent consecutive contract;
  • was employed through a competitive and open selection process; and
  • is "research active" as defined by their Budget Division or employed on a research project.

The University may, in its absolute discretion, offer a RCECF notwithstanding not all of the above criteria are satisfied.

13.2

Applications must be made in writing to the Director, Human Resources Services Division, and the Director will advise the staff member in writing of the outcome within 20 working days of receiving the application. The University may refuse an application on reasonable grounds. Reasonable grounds include:

  • the criteria in sub-clause 13.1 are not satisfied;
  • where it is unlikely that there will be sufficient revenue or funding available to provide continuing support for the staff member’s employment beyond a further 3 year period;
  • the staff member’s performance has not been assessed as being at least “successful”;
  • the staff member is performing work which is predominantly related to discontinued, or discontinuing programs or a disciplinary area that is not being actively pursued by the University; or
  • the staff member is a general staff member and he or she does not have sufficiently transferable skills that would reasonably enable the University to redeploy the staff member to another position within the University upon expiration of the existing research grant; or
  • the staff member is a student, and their status as a student was the primary reason for their appointment.

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Conditions

13.3

Subject to this clause, staff on RCECFs will receive the same entitlements as other continuing staff members, including superannuation.

13.4

The following provisions do not apply to staff members on RCECFs:

  1. where funding for the continuation of a RCECF position ceases, the consultation provisions of clause 66 (Consultation on Major Workplace Change) in respect of the position that the staff member occupies;

  2. clause 22 (Redundancy - Academic Staff) and clause 21 (Redundancy – General Staff);

  3. provisions applicable to staff members employed on fixed term employment as specified elsewhere in this Agreement.

Measures to Avoid Termination

13.5

Where the funding that supports a staff member's RCECF ceases:

  1. the University may transfer the staff member to another equivalent position;

  2. at the discretion of the relevant Head of Organisational Unit, a RCECF staff member may be employed using other available funding, where:
    • the use of such funding is for a limited period; and
    • the Budget Division has a reasonable expectation that alternative research funding or a continuing appointment will become available.

  3. if, during the notice period specified in sub-clause 13.7 below, the funding for the position is renewed, the notice period ceases to apply and employment continues;

  4. if an application for renewal of the funding for the position is still pending, then by mutual agreement:
    1. the period of employment may continue for any period of:
      •  paid recreation leave and/or long service leave; and thereafter
      • unpaid leave, provided that unpaid leave will not be available under this clause to bring the aggregate period of leave above 12 weeks; or

    2. if the employment has ceased, payment of severance pay and/or payment in lieu of notice may be delayed for up to 12 weeks to facilitate continuation of service and if the funding for the position is renewed, the staff member’s employment will recommence, there willl be no entitlement to severance pay or payment in lieu of notice and the period from cessation of employment to recommencement of employment will not break continuity of service, but will not count as service.

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Termination of RCECF

13.6

A RCECF may be terminated when:

  1. the funding that supports the position ceases or is insufficient; or

  2. the inherent nature of the work required has changed significantly and the skills and experience of the staff member will not enable them to complete the requirements of the position; or

  3. termination is under the probation or disciplinary provisions of this Agreement.

If a staff member's employment is terminated under (a) or (b) above, and alternatives to termination under sub-clause 13.5 above have been unsuccessful, the staff member will be provided notice and severance payments under sub-clauses 13.7 and 13.8.

Notice Periods and Severance

13.7

Where a staff member is terminated in accordance with sub-clause 13.6(a) or (b), the staff member will be provided with a minimum of 4 weeks notice of termination, or 5 weeks if the staff member is over 45 years of age, which the University may pay out in lieu of notice.

13.8

Severance pay for staff members on RCECFs will be in accordance with the following, subject to any greater applicable legislative entitlement:

Length of Continuous Service                   
Severance payment
1 year or more and up to 2 years 4 weeks pay
2 years or more but less than 3 years 6 weeks pay
3 years or more but less than 4 years 7 weeks pay
At least 4 years but less than 5 years 8 weeks pay
At least 5 years but less than 6 years 10 weeks pay
At least 6 years but less than 7 years 11 weeks pay
At least 7 years but less than 8 years 13 weeks pay
At least 8 years but less than 9 years 14 weeks pay
At least 9 years but less than 10 years 16 weeks pay
10 years and over                                                          
12 weeks pay

13.9

Severance pay will not apply where the staff member has:

  1. resigned or declined an offer for further employment;

  2. has obtained further employment within the University without the loss of accrued entitlements; or

  3. the University has assisted the staff member in securing the same or similar employment with another employer, with a transfer of all entitlements.

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14 Fixed - Term Employment

14.1

A staff member may be employed on a fixed-term basis.

Conditions for Fixed-Term Contract of Employment

14.2

A fixed-term staff member, other than an apprentice, will be entitled to all the benefits of a continuing staff member in the same classification of employment, except as otherwise provided for in this Agreement.

14.3

A fixed-term academic staff member may be placed on academic probation under sub-clause 8.2 of this Agreement.

14.4

Any second or subsequent periods of fixed-term employment for an academic staff member will not contain an academic probationary period unless the second or subsequent period of fixed-term employment is for a position in which the duties are substantially different from the former periods of fixed-term employment.

14.5

A fixed-term staff member who has a period of continuous service in a classification under this Agreement which has an incremental structure, will be entitled to progress through that structure in the same way as a staff member employed as a full-time staff member in the same or similar classification.

14.6

For the purpose of calculating a fixed-term staff member's period of continuous service, a break of up to six weeks in a year or up to two breaks per year between periods of fixed-term employment will not constitute breaks in the staff member's continuous service, but will not count as service. In addition, a break between periods of fixed-term employment between trimester 2 and trimester 1 will not constitute a break in the staff member's continuous service, but will not count as service.

14.7

Periods of approved unpaid leave during the period of the fixed-term employment will not constitute breaks in service for the purposes of this clause.

14.8

In the case of part-time fixed-term employment, the salaries, allowances and other entitlements under this Agreement applicable to an equivalent full-time staff member apply to the part-time staff member on a proportionate basis according to the fraction of time worked.

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Use of fixed-term employment

14.9

After this Agreement starts operating, the use of fixed-term employment will be limited to the employment of a staff member under one of the following categories:

Specific Task or Project

The University may offer fixed-term employment to undertake a specific task or project. A specific task or project is a definable work activity which has a starting time and which is expected to be completed within an anticipated timeframe. Without limiting the generality of this category, it will also include a period of employment provided for from contingent funding.

Research

The University may offer fixed-term employment to undertake research only functions for a contract period not exceeding 5 years.

Replacement staff member

The University may offer fixed-term employment to a 'replacement staff member". "Replacement staff member" means employment of a staff member:

  1. to undertake the work of a full-time or part-time staff member absent on leave or temporary secondment or transfer; or

  2. to perform the duties of a vacant position where recruitment action has commenced.

  3. to perform the duties of a position where the substantive occupant of that position is performing higher duties.

This category will also include the employment of a staff member to cover the difference in hours where a staff member (the substantive staff member) who has returned from a period of parental leave or other authorised leave is employed on a part-time basis for a defined period. Such periods of fixed-term employment may be contingent upon the graduated return to work of the substantive staff member on leave or returning from leave.

The University may only employ a replacement staff member for one period of fixed-term employment. However, the period of fixed-term employment may be extended if the period of absence of the staff member referred to in paragraph a. is extended.

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Recent Professional Practice Required

The University may offer fixed term employment for a contract not exceeding 2 years where a curriculum in professional or vocational education requires work to be undertaken by a person who has recent practical or commercial experience. For the purpose of this paragraph, practical or commercial experience will be considered as “recent” only when it has occurred in the previous two year period prior to the appointment.

Pre-retirement Contract

Where a full time or part time staff member declares that it is his or her intention to retire, a fixed term contract expiring on or around the relevant retirement date may be adopted as the appropriate type of employment for a period of up to 5 years.

Post-retirement Contract

The University may offer post-retirement fixed-term employment to a person who has formally retired from the workforce.

Student Employment

The University may offer fixed-term employment to a person who is enrolled in the University as a student. Fixed-term employment may be offered for a work activity that is within the student's academic unit, an associated research unit or a cognate administrative unit and is work generally related to a degree course that the student is undertaking. The fixed-term employment will be for a period that does not extend beyond, or that expires at the end of, the academic year in which the person ceases to be a student, including any period that the person is not enrolled as a student, but is awaiting his or her results.

An offer of fixed term employment under this sub-clause should not be made on the condition that the person offered the employment undertakes a course of study.

New Organisational Unit

Fixed-term employment of up to three years may be offered in a newly established organisational work unit.

If at the end of the allowable period of fixed-term employment under this category, the requirement for the work which has been performed continues, the University shall employ the staff member on a continuing basis without the need for the position to be advertised, but only where an ongoing vacancy exists, the staff member meets the requirements of the position, the staff member was selected after the previous fixed-term position was openly advertised and the staff member has performed satisfactorily in that position.

Disestablished Organisational Unit

A fixed term contract may be offered to a staff member where a decision has been made by the University to discontinue work in that area within 24 months. The use of such contracts will not exceed 24 months, provided that:

  • the letter of offer of employment includes an undertaking that subject to satisfactory performance, should the decision to discontinue the work area be reversed, or should for any other reason the staff member's position or substantially the same position continue beyond a 24 month period, the staff member will be offered that work on a continuing basis.
  • should a position not be available under the previous bullet point, upon request by the staff member, the University will, for three months prior to the expiry of the contract, make reasonable attempts to identify other employment opportunities within the University.

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Apprenticeship or Traineeship

Fixed-term employment may be offered to an apprentice or trainee employed under an apprenticeship or traineeship approved by a training authority, or a person employed under a special Commonwealth or State Government employment or training scheme. Specific conditions for trainees are covered in Schedule E of this Agreement.

Early Career Development Fellowships

An Early Career Development Fellowship (ECDF) is a fixed term academic appointment, classified, subject to the qualifications and experience of a successful candidate, at Level A or B.

ECDFs will:

  • be for a minimum time fraction of 0.5;
  • be for a minimum duration of 2 years and no more than 5 years;
  • have a maximum probationary period of 12 months: and
  • unless they are exempt, require persons appointed to an ECDF to undertake the Graduate Certificate in Higher Education.

In accordance with the following requirements, the University will advertise and fill 8 EFT academic positions as ECDFs during the life of this Agreement and use its best endeavours to increase this number to 12 EFT academic positions.

The University will make appointments to ECDFs on the basis of an open, competitive and merit based selection process. Like other academic appointments, staff employed on ECDFs will have workload allocated in accordance with clause 32.

Appointment to an ECDF will be restricted to persons who have:

  • been awarded a PhD and have performed casual teaching work for the University in at least two entire teaching periods during the past three years; or
  • be an activate candidate for a PhD for at least two years and have performed casual teaching work for the University in at least two entire teaching periods during the past three years.

 An appointment in accordance with this clause does not provide entitlement to the following:

  • a continuing appointment;
  • conversion to a continuing appointment;
  • any further fixed term appointment; or
  • any severance payment at the expiry of the ECDF fixed term appointment.

The University will review the ECDF scheme on the expiry of this Agreement.

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14.10

During the period of fixed-term employment, the staff member's employment may not be terminated by the University, other than:

  1. for an academic staff member, during the staff member's period of probation; or

  2. for a general staff member, during the staff member's minimum employment period under the Fair Work Act 2009; or

  3. for cause based upon serious or wilful misconduct.

14.11

Before the end of the staff member's period of fixed-term employment, the University will provide to the fixed-term staff member a written notice that, at the expiry of the contract, the University intends to:

  1. continue the position on a further fixed term contract basis;

  2. continue the position on a continuing basis; or

  3. discontinue the position.

14.12

Where the University has made a determination in accordance with sub-clause 14.11 a) or b), the staff member will be offered further employment in the fixed term or continuing position provided the staff member was employed in the relevant position through a competitive and open selection process and has performed satisfactorily in that position.

14.13

The period of notice to be given by the University under sub-clause 14.11 will be the greater of:

  1. any entitlement the staff member may have to notice of the University's intention to renew, or not to renew, employment on the expiry of the period of the fixed-term; or

  2. the period of notice outlined in the table below:

 

Period of Continuous Service     
Period Of Notice   
Up to 3 years

2 weeks

3 years but less than 5 years

3 weeks

5 years or over

4 weeks

14.14

The period of notice is increased by one week if the fixed-term staff member is over 45 years old and has completed at least 2 years of continuous service with the University.

14.15

Where, because of circumstances external to the University and beyond its control, which relate to the provision of specific funding to support employment, the University is not reasonably able to give the notice required by sub-clause 14.11, the University may:

  1. advise the staff member in writing about the circumstances at the latest time at which the notice would otherwise be required to be given; and

  2. give notice to the staff member at the earliest practicable date after that.

14.16

Where the University gives notice in accordance with sub-clause 14.11(a), and the fixed-term staff member meets the circumstances described in sub-clause 14.12, the staff member may apply for conversion to continuing employment on the same salary and classification level.

14.17

The University may refuse conversion on reasonable grounds, which may include but are not limited to, the following:

  1. the staff member is a University student;

  2. the staff member is a genuine retiree;

  3. the staff member elected to change from continuing employment to a pre-retirement contract;

  4. the work performed by the staff member is predominantly related to discontinued programs;

  5. the period of fixed-term employment is for a specific task or project, or is a position funded by contingent funding; or

  6. the period of fixed-term employment is for the purpose of filling a temporary vacancy or to meet a curriculum requirement in vocational or professional education for recent practical or commercial experience.

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Severance pay

14.18

A fixed-term staff member is entitled to receive a severance payment on the expiry of the staff member's period of fixed-term employment calculated in the manner set out in the table below where:

  1. the University has decided, under sub-clause 14.11(c), not to offer the staff member either employment for a further period of fixed-term employment or employment on a continuing basis, with the effect that the staff member's employment will end at the expiry of the period of fixed-term employment, and

  2. the staff member sought to continue his or her employment with the University, and

  3. the staff member has been employed for 2 or more periods of fixed-term employment, and

  4. the staff member is not employed for a period of fixed-term employment to undertake work that is predominantly for research or for a specific task or project, and

  5. the staff member has been employed for 2 or more periods of fixed-term employment after the date this Agreement comes into operation.

Length of continuous service                     
Severance Pay           
3 years or more but less than 4 years 4 weeks' salary
4 years or more but less than 5 years 5 weeks' salary
5 years or more but less than 6 years 6 weeks' salary
6 years or more but less than 7 years 7 weeks' salary
7 years or more but less than 8 years 7 weeks' salary
8 years or more but less than 9 years 8 weeks' salary
9 years or more but less than 10 years 9 weeks' salary
10 years and over 12 weeks' salary

14.19

If the fixed-term staff member is entitled to a severance payment under sub-clause 14.18 and the staff member has 5 or more years of continuous service with the University, the staff member will also be entitled to payment in lieu of long service leave calculated at the rate of 1.3 weeks per year of service. The entitlement will be calculated on a pro rata basis for a part-year of service after the initial 5 years.

14.20

A staff member employed for a period of fixed-term employment to undertake work that is predominantly for research or for a specific task or project will be entitled to a severance payment calculated in the manner set out in the table below where:

  1. the following conditions are met:
    1. the University has decided, under sub-clause 14.11(c), not to offer the staff member either employment for a further period of fixed-term employment or employment on a continuing basis, with the effect that the staff member's employment will end at the expiry of the period of fixed-term employment; and

    2. the staff member sought to continue his or her employment with the University, and

    3. ithe staff member has been employed for 2 or more periods of fixed-term employment.
  2. OR

  3. the following conditions are met:
    1. the University has decided, under sub-clause 14.11(a) or (b) to offer the staff member either employment for a further period of fixed-term employment or employment on a continuing basis;

    2. the staff member does not meet the circumstances described in sub-clause 14.12.

 

Length of continuous service                    
Severance Pay         
1 year or more but less than 2 years 4 weeks' salary
2 years or more but less than 3 years 6 weeks' salary
3 years or more but less than 4 years 7 weeks' salary
4 years or more 8 weeks' salary

14.21

If the University advises a staff member in writing that further employment may be offered within 6 weeks of the expiry of a period of fixed-term employment, then the University may defer payment of a severance payment under sub-clauses 14.18 and 14.20 for a maximum period of 6 weeks from the expiry of the period of fixed-term employment.

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15 Casual Employment - General Staff

15.1

A casual general staff member means a person who is employed by the hour and paid on an hourly basis. Hours of work will be rounded-up to the nearest 15 minutes.

15.2

In addition to his or her base hourly rate of pay, a casual general staff member will be paid a casual loading of 25% from the first full pay period commencing on or after the date this Agreement comes into operation. The casual loading is paid to the staff member in lieu of benefits provided to staff members who are not casuals, including all leave benefits, penalties and loadings. The following provisions of this Agreement do not apply to the casual general staff member:

  1. personal leave (except unpaid compassionate leave);

  2. sick leave;

  3. carer's leave (except unpaid carer's leave);

  4. recreation leave;

  5. University holidays;

  6. parental leave (except for casual staff members who qualify, see sub-clause 36.23);

  7. redundancy;

  8. termination of employment;

  9. termination of employment on the grounds of ill health;

  10. disciplinary action for unsatisfactory employment;

  11. procedures to deal with allegations of misconduct and serious misconduct; and

  12. arbitration leave.

15.3

The minimum period of engagement for a casual general staff member will be 3 hours, except for students of the University engaged in casual work of any type for the University, for whom the minimum period of employment will be one hour.

15.4

In order to meet his or her personal circumstances, a casual general staff member and the University may agree to a minimum period of employment of less than 3 hours.

15.5

If the casual general staff member is required to work on more than one occasion on the same day, the minimum period of engagement under sub-clause 15.3 will apply to the total number of hours worked by the staff member on that day.

 

15.6

Overtime is only payable to a casual general staff member who works in excess of 8 hours and 49 minutes on any one day. In relation to the excess hours, the staff member will receive the greater of the overtime rate that would apply to overtime worked on that day by an equivalent full-time staff member or the casual loading, but not both.

15.7

The procedures for the conversion of a casual general staff member to non-casual employment are outlined in Schedule F to this Agreement.

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16 Casual Employment - Academic Staff

16.1

A casual academic staff member means a person employed by the hour and paid on an hourly basis. The rates paid to the staff member are calculated in the manner set out in Schedule G to this Agreement. The rates set out in Schedule G include a casual loading of 25% which will apply from the first full pay period commencing on or after the date this Agreement comes into operation. The casual loading is paid to the staff member in lieu of benefits provided to staff members who are not casuals, including all leave benefits. The following provisions of this Agreement do not apply to the casual academic staff member:

  1. personal leave (except unpaid compassionate leave);

  2. sick leave;

  3. carer's leave (except unpaid carer's leave);

  4. recreation leave;

  5. University holidays;

  6. parental leave (except for casual staff members who qualify, see sub-clause 36.23);

  7. redundancy;

  8. termination of employment;

  9. termination of employment on the grounds of ill health;

  10. disciplinary action for unsatisfactory employment;

  11. procedures to deal with allegations of misconduct and serious misconduct; and

  12. arbitration leave.

16.2

All casual academic staff members undertaking casual work in a teaching period will have access to the University library and access to the same computer facilities afforded to a casual academic staff member for a period of 3 weeks before the commencement of a teaching period, and for a period of 3 weeks after the conclusion of a teaching period.

16.3

A casual academic staff member will not be required to be solely responsible for the development of a unit or course of study. However, the staff member may be responsible for the coordination of a unit or course of study for short periods of time to cover an unexpected vacancy.

Marking 

16.4

With effect from the commencement of the Agreement, a casual academic staff member will be paid separately for academic marking undertaken by the staff member except for any marking undertaken in the classroom, tutorial, lecture or in the delivery of clinical education. The rates to be paid are set out in Schedule G to this Agreement.

16.5

Faculties will consult with their staff members to develop guidelines that reflect reasonable expectations for academic marking. These guidelines will take into account the complexity of the marking and the experience of the markers. The marking process may involve the following 3 stages: evaluation of the assessment, provision of feedback and the recording of results. This will not limit the requirement to pay staff members according to the work performed. When these guidelines are developed, they will then be provided to all current academic casual staff members and to new academic casual staff members upon commencement of their employment (see sub-clause 8.1(c)).

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17 Academic Probation

17.1

The University may require an academic staff member who is offered a continuing appointment with the University to serve a probation period of between 24 and 36 months. The University, in determining the length of the probation period or whether to waive such a period, will have regard to the staff member's prior service and performance at other universities and the staff member’s qualifications and experience. A probation period of 36 months would be appropriate for a staff member with no prior full-time or part-time time service at a university.

17.2

If, prior to the employment of an academic staff member to a continuing appointment, the staff member has been employed for a period of fixed-term employment at the University, he or she will not be required to serve a probationary period under this clause provided that:


  1. the staff member's fixed-term employment was for a period of at least 3 years; and

  2. the staff member has performed an appropriate range of academic duties consistent with the academic level at which the staff member will be employed; and

  3. there has been no break in service in excess of 6 months following the fixed term employment and prior to the commencement of the staff member's continuing appointment.

17.3

The University will not normally require an academic staff member to serve a probationary period of greater than 36 months including probation served under previous appointment/s and the current appointment.

17.4

During the probation period, the academic staff member's performance will be periodically assessed and the staff member will be provided with constructive feedback, along with periodic counselling to confirm progress or develop strategies to resolve identified difficulties. Where appropriate, a probationary academic staff member will be given the opportunity to participate in a staff development program to develop and refine his or her teaching and/or research skills.

17.5

A formal review or reviews will be conducted during the academic staff member’s probation period and feedback on performance will be given to the staff member. The review will determine whether the academic staff member's employment will:

  1. be confirmed; or
  2. be terminated; or
  3. continue on a probationary basis within the timeframe of the probationary period of employment.

17.6

Where the review results in a decision to terminate the academic staff member's employment, the staff member will be given a minimum period of 6 months' written notice of the day of the termination. The University may decide to make a payment in lieu of notice for part or all of this period. If the University makes a payment in lieu of notice, the payment or the combined period of part notice and pay will not exceed 6 months. If part or all of the period of notice is to be paid in lieu, the amount of the payment must equal the total of all amounts the staff member would have received had the staff member's employment continued to the end of the required notice period.

17.7

Where the review results in a decision to terminate the academic staff member's employment, the staff member may elect, within 10 working days of receiving written notice of the review decision, to lodge an appeal on the grounds that the decision was affected by procedural irregularity or miscarriage of process or the availability of evidence or material which was not available at the time of the decision to not confirm the staff member's appointment. If an appeal is lodged, it will be reviewed by the Academic Probation Appeal Committee.

17.8

The Academic Probation Appeal Committee will operate in accordance with clause 72 of this Agreement. Wherever practicable, the members of the Committee will be academics holding continuing appointments in the relevant unit of organisation or from a cognate discipline.

17.9

The Academic Probation Appeal Committee will recommend to the Vice-Chancellor either the appeal be dismissed and the decision confirmed, or the process was flawed. In the latter case, the Vice-Chancellor will consider the decision and, where appropriate, take steps to correct the process.

17.10

Sub-clauses 17.1 to 17.9 inclusive do not apply to fixed term academic staff members. A fixed term academic staff member may be placed on academic probation containing a reasonable probationary period that is directly related to the nature of the work to be carried out under the contract. As a condition incidental to employment on probation, a staff member will be advised of, and given an opportunity to make response to, any adverse material about the staff member that the University intends to take into account in a decision to terminate the staff member’s employment upon or before the expiry of the period of probation.

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18 Senior Staff Performance Contracts

18.1

A staff member may be offered employment on a senior staff performance contract, which can be either for a period of fixed-term employment or employment on a continuing basis. Existing staff members who are employed by the University on a continuing basis who accept a transfer or promotion to a position on a senior staff performance contract for a period of fixed-term employment are entitled to return to their substantive continuing position at the conclusion of the fixed-term. This entitlement will not apply if the staff member's employment is terminated by the University either during or at the end of the period of fixed-term employment.

18.2

A staff member who qualifies to be offered employment on a senior staff performance contract is:

  1. an academic staff member employed at a level equivalent to Dean or above who receives salary and cash equivalent loadings of $160,433 or more per year; or

  2. a general staff member employed at or above HEW level 10 and who receives salary and cash equivalent loadings of $131,264 or more per year.

18.3

The salary levels set out in sub-clause18.2 will increase proportionately in line with the salary increases in this Agreement.

18.4

A motor vehicle made available to the staff member for work and private use will be given a cash equivalent value (in accordance with the University's policy applying at the time) and included in the calculation of cash equivalent loadings referred to in sub-clause 18.2.

18.5

A staff member employed on a senior staff performance contract will not be entitled to receive the salary increases outlined in sub-clause 2.1 of this Agreement. Any salary increase will be based on the staff member's performance. The staff member's performance will be assessed in accordance with the Performance Planning and Review process outlined in clause 59 of this Agreement. However if the staff member's salary falls below the appropriate salary level in sub-clause 18.2 (as increased under sub-clause 18.3) then the staff member’s salary will be increased to that level.

18.6

The provisions of this Agreement apply to a staff member employed on a senior staff performance contract, except for the following clauses:

  1. discipline and related matters in clauses 17 and 19;

  2. redundancy related matters in clauses 21 and 22; and

  3. fixed-term employment related matters in clause 14 (apart from sub-clause 14.1, which will still apply).

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19 Disciplinary Action for Unsatisfactory Performance

19.1

Unsatisfactory Performance means a serious failure of the staff member to perform the work of the position or appointment at a level which would be reasonably required having regard to:

  1. the nature and purpose of the position;

  2. its classification; and

  3. any representations made by the staff member at the time of selection for employment or selection/promotion to the staff member’s current position or level.

When applying the processes set out in this clause:

  1. all issues will be investigated thoroughly and justly;

  2. staff members will be counselled and given every reasonable opportunity to improve their performance;

  3. in spite of all reasonable efforts by the University to improve the staff member’s performance, the staff member does not meet the required standards, then disciplinary action including termination of employment may occur;

  4. disciplinary action for unsatisfactory performance must take place in accordance with these procedures.

19.2

Disciplinary action means:

  1. formal censure, warning or counselling;

  2. withholding of an increment;

  3. demotion to a lower classification or increment and/or transfer to another position;

  4. suspension with or without pay; or

  5. termination of employment.

19.3

Where a staff member's supervisor is of the view that the staff member’s performance is unsatisfactory, the supervisor will:

  1. counsel the staff member about the staff member's unsatisfactory performance;

  2. give the staff member clear expectations about the required standards of performance; and

  3. give the staff member a reasonable period of time to demonstrate performance against those expectations.

19.4

Where the supervisor believes that the process outlined in sub-clause 19.3 has not produced the desired improvements in the level of the staff member's performance in that the staff member's performance has not improved to the required standard, disciplinary action may be taken against the staff member. If disciplinary action is to be taken, the supervisor will advise the staff member in writing of the unsatisfactory performance, including details of any relevant facts and documentation.

19.5

The supervisor will provide the staff member with a reasonable opportunity to be heard and to make a written submission, within 10 working days, in relation to the unsatisfactory performance.

19.6

At the end of the 10 working day period referred to in sub-clause 19.5, the supervisor will refer the matter to the Head of Organisational Unit, who will consider the material referred to in sub-clause 19.4 and the response from the staff member under sub-clause 19.5. The Head of Organisational Unit may then decide to provide a report to the Vice-Chancellor which outlines the areas of unsatisfactory performance, the response of the staff member and any recommendation regarding disciplinary action.

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Preliminary Decision

19.7

The Vice-Chancellor will consider the report and make a preliminary decision about what, if any, disciplinary action should be taken against the staff member. The Vice-Chancellor may seek additional information if he or she determines it is necessary.

19.8

The Vice-Chancellor will satisfy himself or herself that appropriate steps have been taken to bring the unsatisfactory nature of the performance of the staff member to the staff member's attention, that an adequate opportunity to respond was given and that any response was taken into account.

19.9

Any preliminary decision by the Vice-Chancellor that disciplinary action be taken against the staff member will be notified to the staff member in writing.

Review Process 

19.10

The staff member may seek a review of the preliminary decision of the Vice-Chancellor within 10 working days of the staff member receiving the written notice of the preliminary decision. If the staff member seeks a review within this time, a Discipline Review Committee will be established and operate in accordance with clause 72 of this Agreement.

19.11

The preliminary decision of the Vice-Chancellor becomes final if the staff member has not sought a review of the preliminary decision within the 10 working days.

Discipline Review Committee 

19.12

Where a matter is referred to a Discipline Review Committee, the Director, Human Resources Services Division will convene the Committee within 10 working days.

19.13

The Discipline Review Committee will report to the Vice-Chancellor outlining:

  1. whether there is sufficient evidence to support a finding of unsatisfactory performance;

  2. whether the procedures of this clause have been followed; and

  3. any recommendation about disciplinary action in light of the matters outlined in sub-clauses 19.13 (a) and (b).

19.14

The staff member has the right to be represented by a person in accordance with sub-clause 6.22 of this Agreement when a matter is being considered by a Discipline Review Committee under this clause.

19.15

The Discipline Review Committee will provide a written report to the Vice-Chancellor as soon as is practicable following the conclusion of the Committee proceedings.

19.16

The Vice-Chancellor, having considered the report of the Discipline Review Committee, may reconsider his or her preliminary decision and determine what, if any, disciplinary action should be taken. The Vice-Chancellor may seek additional information if he or she determines that this is necessary.

19.17

The Vice-Chancellor will then advise the Head of Organisational Unit and the staff member in writing of his or her decision.

General provisions 

19.18

The decision of the Vice-Chancellor under this clause will be final, except that nothing in the clause will be construed as excluding the jurisdiction of any court or tribunal which, but for this clause, would be competent to deal with the matter.

19.19

If at any stage during the procedures under this clause the University finds that the details of the unsatisfactory performance should be amended or new details added, the staff member must be advised of this in writing and be given a further reasonable opportunity to provide input prior to any further steps being taken by the University.

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20 Procedures to Deal with Allegations of Misconduct and Serious Misconduct

20.1

Set out below are the procedures the University will follow to deal with allegations of misconduct and serious misconduct against a staff member.

When applying the processes set out in this clause:

  1. all issues will be investigated thoroughly and justly;

  2. except in cases where serious misconduct is alleged, the staff member should be given every reasonable opportunity to improve his or her conduct;

  3. disciplinary action may be taken if, in spite of all reasonable efforts by the University to improve the staff member's conduct, the staff member's conduct fails to meet the required standards;

  4. disciplinary action for misconduct or serious misconduct must take place in accordance with these procedures.

Definitions

20.2

"Misconduct" shall mean :

  1. conduct which is not serious misconduct but which is nonetheless conduct which is unsatisfactory (including, but not limited to, breaches of the University's Code of Conduct); or

  2. misconduct in research.

20.3

"Serious misconduct" means:

  1. serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member's duties or to a staff member's colleagues carrying out their duties (including, but not limited to, breaches of the University's Code of Conduct);

  2. serious dereliction of the duties required of the position;

  3. theft or fraud

  4. serious misconduct in research; or

  5. conviction by a court of an offence where that offence constitutes a serious impediment to the carrying out of a staff member's duties or functions or to a staff member's colleagues carrying out their duties or functions.

Examples of conduct which may constitute serious misconduct are:

  1. assault;

  2. repeated incidents of misconduct; or

  3. serious or repeated bullying or harassment, including sexual harassment; or

  4. wilful and gross breach of the staff member's contract, the University's policies, regulations or the University's Code of Conduct, such that it would be unreasonable to continue the staff member's employment.

20.4

Disciplinary action means:

  1. formal censure, warning or counselling;

  2. withholding of an increment;

  3. demotion to a lower classification or increment and/or transfer to another position;

  4. physical relocation on the staff member's campus location or suspension of access to certain University equipment having regard to the nature of the misconduct or serious misconduct;

  5. temporary suspension with or without pay; or

  6. termination of employment.

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20.5

In cases of misconduct only, disciplinary action is limited to the matters set out in sub-clauses 20.4(a) to (d).

Allegations of Misconduct or Serious Misconduct

20.6

If an allegation of misconduct or serious misconduct is made, the staff member will be:

  1. advised in writing by his or her supervisor of the alleged misconduct or serious misconduct, including details of any relevant facts and documentation and whether the allegation is considered to be serious misconduct; and

  2. given a reasonable opportunity to be heard and to make written submissions, within 10 working days, in relation to the allegations.

20.7

At the end of the 10 working day period referred to in sub-clause 20.6(b), the staff member's supervisor will refer the matter to the Head of Organisational Unit, who will consider the material referred to in sub-clause 20.6. The Head of Organisational Unit may then decide to provide a report to the Vice-Chancellor which outlines the allegations, the response of the staff member and any recommendation regarding disciplinary action.

20.8

If the allegation is admitted in full by the staff member and the Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, the Vice-Chancellor will advise the staff member in writing of the decision and the operative date of any disciplinary action.

Preliminary Decision

20.9

If the allegation is denied in part or in full, or if the staff member has not responded to the allegation, the Vice-Chancellor will consider the report and make a preliminary decision about whether the allegation is made out in part or in whole and what, if any, disciplinary action should be taken against the staff member. The Vice-Chancellor may seek additional information if he or she determines this is necessary.

20.10

Any preliminary decision by the Vice-Chancellor will be notified to the Head of Organisational Unit and the staff member in writing.

Review Process where a Preliminary Decision has been made

20.11

The staff member may seek a review of the preliminary decision within 10 working days of the staff member receiving the written notice of the preliminary decision of the Vice-Chancellor. If the staff member seeks a review within this time, a Discipline Review Committee will be established and operate in accordance with clause 72 of this Agreement.

20.12

The preliminary decision of the Vice-Chancellor becomes final if the staff member has not sought a review of the preliminary decision within those 10 working days.

20.13

Where a matter is referred to a Discipline Review Committee, the Director, Human Resources Services Division will convene the Committee within 10 working days.

20.14

The staff member has the right to be represented by a person in accordance with sub-clause 6.22 when a matter is being is being considered by a Discipline Review Committee under this clause.

20.15

The Discipline Review Committee will report to the Vice-Chancellor outlining:

  1. whether there is sufficient evidence to support the allegation of misconduct or serious misconduct;

  2. whether the procedures of this clause have been followed; and

  3. any recommendation about disciplinary action in light of the matters outlined in sub-clauses 20.15 (a) and (b).

20.16

The Discipline Review Committee will provide a written report to the Vice-Chancellor as soon as is practicable following the conclusion of the Committee proceedings. A copy of the report will be provided to the staff member.

Disciplinary Action where a Preliminary Decision has been made and the staff member has sought a Review of the Preliminary Decision

20.17

The Vice-Chancellor having considered the report of the Discipline Review Committee may reconsider his or her preliminary decision and determine what, if any, disciplinary action should be taken. The Vice-Chancellor may seek additional information if he or she determines that this is necessary.

20.18

The Vice-Chancellor will then advise the Head of Organisational Unit and the staff member in writing of his or her decision.

General provisions

20.19

The decision of the Vice-Chancellor made in accordance with this clause will be final, except that nothing in this clause will be construed as excluding the jurisdiction of any court or tribunal which, but for this clause, would be competent to deal with the matter.

20.20

If at any stage during the procedures under this clause, it is found that that the allegation should be amended or new allegations added, or the allegation contains additional elements which amount to serious misconduct, the staff member must be advised of this in writing and be given a further reasonable opportunity to be heard and to make written submissions prior to any further steps being taken by the University.

20.21

It is open to the Vice-Chancellor to determine that allegations of serious misconduct amount only to misconduct. If such a determination is made, the Vice-Chancellor will determine what, if any, disciplinary action should be taken.

20.22

If the staff member is also subject to the Disciplinary Action for Unsatisfactory Performance clause of this Agreement, then the Vice-Chancellor may determine that the same Disciplinary Review Committee is to deal with both matters. The staff member will be advised at the earliest possible opportunity of this decision.

20.23

Where an allegation of serious misconduct has been made against a staff member, the Vice-Chancellor may, at any stage during the procedures under this clause, suspend the staff member, either with or without pay, until the conclusion of the matter if the Vice-Chancellor considers that, prima facie, the allegations are serious enough to warrant the staff member not being at work, provided that:

  1. with the approval of the Vice-Chancellor, the staff member may draw on any accrued entitlement to recreation leave or long service leave for the duration of the suspension without pay;

  2. the Vice-Chancellor may at any time direct that salary be paid, in part or in full, on the grounds of hardship for the period of the suspension or a part period;

  3. the Vice-Chancellor may upon receiving a recommendation from the Discipline Review Committee reconsider the issue of the suspension of the staff member.

20.24

During any period of suspension the staff member will be excluded from the University or any identified parts of the University, provided that he or she will be permitted reasonable access to the University to prepare his or her case and to collect personal property.

20.25

If in the future the University is required to comply with the procedures for dealing with allegations of misconduct or serious misconduct in research set out in Part B of the "Australian Code for Responsible Conduct of Research" (Code) then the University will discuss this requirement with the NTEU.

20.26

Where the Vice-Chancellor determines that no disciplinary action will be taken and the staff member has been suspended under sub-clause 20.23, the staff member will be reinstated at no loss of salary or conditions.

20.27

The University may terminate the staff member's employment without notice if the staff member has engaged in serious misconduct such that it would be unreasonable to require the University to continue to employ the staff member during a period of notice.

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21 Redundancy - General Staff

21.1

In this clause:

  1. service with the University may be affected by clause 41 of this Agreement and a determination as to whether service is continuous service shall be made by reference to section 22(3) of the Fair Work Act 2009 however clause 41 will be determinative in relation to discounting any period of service and not the Fair Work Act 2009; and

  2. prior service with the University provided that any period of employment prior to a break in employment in excess of 6 months will not count as service;

  3. A general staff member is "Excess to Requirements":
    1. When the University decides that the staff member's position is no longer required as a consequence of circumstances such as:

    2. Where the duties of the position are changed such that the incumbent is not competent to perform those duties provided that the general staff member will not unreasonably refuse appropriate retraining offered by the University in relation to the changed duties;
      • changes in work methods
      • re-organisation
      • financial exigency
      • introduction of new technology
    3. Where the staff member, with reasonable cause, refuses to accept geographic relocation.

  4. "suitable vacant position" means a vacant position:
    • for which a general staff member meets the essential requirements; and
    • which the staff member could perform satisfactorily within what is in all circumstances, a reasonable time; and
    • which is to be filled at the same fraction of full-time as the staff member was employed in the redundant position (or an alternate fraction if the staff member agrees);

  5. a "position of lower grading" is a position for which the maximum salary prescribed by this Agreement is lower than the maximum salary of the position held by the staff member at the time the staff member becomes excess to requirements.

21.2

Where it appears to the Vice-Chancellor that a general staff member has become, or is likely to become, excess to the requirements of the University, the Vice-Chancellor will advise the staff member and NTEU at the earliest practicable time. Unless an alternative to involuntary retrenchment is found employment will terminate at the expiry of the following periods from the date of the advice:

Where the staff member is 45 years of age or more or:

 

has at least 20 years' continuous service       
12 months
where the staff member is 44 years of age 11 months
where the staff member is 43 years of age 10 months
where the staff member is 42 years of age 9 months
where the staff member is 41 years of age 8 months
where the staff member is 40 years of age 7 months
all other staff members 6 months

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21.3

During the two month period following the date of the advice issued to the general staff member pursuant to sub-clause 21.2 the Vice-Chancellor will provide the staff member and the NTEU all relevant details, and taking into account the relevant skills, experience and work preferences of the staff member will:

  1. examine options for retraining;

  2. examine measures that could be taken to avoid involuntary retrenchment;

  3. arrange counselling for the staff member as required;

  4. monitor all redundant positions and vacancies within the University;

  5. offer the staff member the redeployment into a suitable vacant position where such a position exists, and

  6. consult with NTEU on a - e above, at its request.

21.4

Where a general staff member has been declared excess to requirements, the Vice-Chancellor will, at the same time the advice under sub-clause 21.2 is given to the staff member, invite the staff member to agree to be retrenched voluntarily. The staff member will have four weeks from the date of the invitation to accept the offer. If the offer is accepted by the staff member, it will apply with immediate effect.

21.5

Where a general staff member accepts an offer of voluntary retrenchment the staff member will receive upon termination;

  1. payment in lieu of salary for the unexpired portion of the four week period in sub-clause 21.4; and

  2. a sum equal to two weeks salary for each completed year of continuous service, plus a pro-rata payment for completed months of service since the last completed year of continuous service, provided that the maximum sum payable will be 48 week's salary and the minimum sum payable will be four weeks salary.

21.6

If at the expiry of two months from the date of the advice issued to the general staff member pursuant to sub-clause 21.2 redeployment to a suitable vacant position has not occurred, then the Vice-Chancellor may exercise one of the following options:

  1. Terminate the staff member's employment in which case the staff member will receive payment in lieu of salary for the unexpired portion of the relevant period in sub-clause 21.2;

  2. Transfer the staff member to a position of equivalent grade and salary for which the staff member is suitable having regard to his or her qualifications and experience, in which case this clause no longer applies. Where such a transfer is rejected by the staff member the Vice-Chancellor may terminate the staff member's employment by giving the staff member two week's notice. If the staff member's employment is so terminated, the staff member will not be entitled to the payment in lieu of salary for the unexpired portion of the relevant period in sub-clause 21.2, or

  3. Transfer the staff member to a suitable position of lower grading and maintain that staff member's former salary level and incremental progression, in which case this clause no longer applies; or

  4. Transfer the staff member to a position of lower grading without ongoing salary maintenance as described in sub-clause 21.6 c in which case the staff member may:
    1. elect to remain in the new position and receive salary maintenance for a period calculated in like manner to the period in sub-clause 21.5 b based on length of service as at the date of transfer; or

    2. within four weeks of the date of transfer elect to terminate employment with immediate effect in which case the general staff member will receive a payment calculated in like manner to the retrenchment benefit in sub-clause 21.5 b.

21.7

When employment is terminated pursuant to sub-clause 21.2, 21.4, or 21.6 the general staff member will receive payment in lieu of accrued long service leave provided that continuous service is one year or more.

21.8

A general staff member who has been informed that they are excess to requirements will be entitled to reasonable leave with pay to attend employment interviews and where expenses to attend such interviews are not met by the prospective University the staff member will be entitled to reimbursement of reasonable travel and incidental expenses incurred in attending such interviews provided that not more than one day's paid leave or expenses will be granted in respect of each interview.

21.9

A general staff member who is excess to requirements will not be subject to discrimination in respect of any application for promotion or transfer to another position.

21.10

This clause will not apply to casual general staff members.

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22 Redundancy - Academic Staff

22.1

Where the University has decided to terminate the employment of one or more academic staff member(s) for reasons of an economic, technological, structural or similar nature, including:

  1. a decrease in student demand or enrolments in any academic course or subject or combination or mix of courses or subjects;

  2. a decision to cease offering or to vary the academic context of any course or subject or combination or mix of courses or subjects;

  3. financial exigency; or

  4. changes in technology or work methods

the University will first inform the staff member or members concerned and the NTEU.

22.2

Where the University informs an academic staff member or members and the NTEU in accordance with sub-clause 22.1 it will also provide the following information;

  1. the terminations and the reasons for them;

  2. the number and categories of staff members likely to be affected; and

  3. the time when, or the period over which, the University intends to carry out the terminations.

22.3

When the academic staff member or members and the NTEU are advised in accordance with sub-clause 22.1, the Vice-Chancellor will provide an opportunity for the staff member and/or the NTEU to:

  1. make suggestions to avoid the staff member or members being excess to requirements resulting in the termination of the staff member’s or members’ employment; or

  2. discuss measures to mitigate the staff member's or members' services being excess to requirements, such as redeployment.

22.4

The measures referred to in sub-clause 22.3 b will include voluntary redeployment and may include voluntary early retirement in accordance with any available scheme, secondments or offers of a voluntary separation package in accordance with sub-clause 22.7.

22.5

Irrespective of any other measure which may be agreed under sub-clauses 22.3 and 22.4 an academic staff member who has been provided with information as required under sub-clause 22.1 will be invited at that time to apply to the Vice-Chancellor to take voluntary separation. The staff member will have a period of 8 weeks from the invitation to apply for voluntary separation.

22.6

Within 5 working days of receipt of an application to take voluntary separation, the Vice-Chancellor will either accept the application (and notify the academic staff member accordingly) or notify the staff member that no further action will be taken to terminate the employment of the staff member.

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22.7

Where the Vice-Chancellor accepts an academic staff member’s application for voluntary separation the following benefits will apply:

  1. a sum calculated at the rate of 2 weeks' salary per completed year of service with the University to a maximum entitlement of 52 weeks' salary;

  2. payment on a pro rata basis for long service leave calculated on completed years of service;

  3. 6 months' further employment from the date of acceptance of an application for voluntary separation;

  4. in relation to the period of further employment the Vice-Chancellor may, prior to the commencement of or during the period of further employment, waive all or part of the period of further employment. If this occurs the staff member will receive payment in lieu of salary for the balance of the period of further employment. The staff member may also request prior to the commencement of or during the period of further employment to receive payment for the balance of the period of further employment. The Vice-Chancellor will approve this request subject to operational requirements;

  5. all payments under this sub-clause will be calculated on the staff member's salary at the date of cessation of employment; and

  6. the benefits in this sub-clause are in lieu of any notice period, access to a scheme of redeployment or other redundancy benefit.

22.8

Following the consultations referred to in sub-clause 22.3 the Vice-Chancellor will formally confirm in writing to an academic staff member who has failed to apply for voluntary separation that the staff member is excess to the requirements of the University.

22.9

Where the Vice-Chancellor has provided the written confirmation in accordance with sub-clause 22.8 the following benefits will apply:

  1. in the case of an academic staff member who is over 45 years of age 12 months further employment from the date of the written confirmation;

  2. in the case of an staff member who is over 40 years of age but under 45, such further employment according to the following scale:
  3. Age 40        
    7 months    
    Age 41 8 months
    Age 42 9 months
    Age 43 10 months
    Age 44 11 months

  4. in the case of any other staff member further employment of 6 months.

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Review

22.10

Where an academic staff member has received written confirmation under sub-clause 22.8 that he or she is excess to requirements, the staff member may, within 7 days of such confirmation, lodge with the Vice-Chancellor an application for review of the decision.

22.11

Where an academic staff member has lodged an application for review under sub-clause 22.10 the Vice-Chancellor will forthwith establish a review committee in accordance with clause 72 of this Agreement.

22.12

The committee shall provide an opportunity for the academic staff member to be interviewed by it and shall give the academic staff member adequate opportunity to put his or her case that fair process was not observed up to the point of the decision by the Vice-Chancellor to advise the staff member that he or she is an excess staff member.

22.13

The review committee will consider:

  1. whether a genuine decision was taken by the University that an academic position or positions should not be filled by anyone or that there was a number of academic staff members in a category who were excess to the requirements of the University;

  2. whether fair and objective criteria were used to select a staff member or members to be identified as excess to requirements; and

  3. whether genuine and adequate consultation was entered into under sub-clause 22.3 and adequate consideration was given to measures to avert or mitigate the adverse effects of the termination

and will conduct itself in accordance with the manner in which its role is to be undertaken as outlined in clause 72 of this Agreement and below:

  1. interview any person it thinks fit to establish the merits or facts of the particular case;

  2. ensure that the staff member or his/her representative and the University representative have the right to ask questions of interviewees, and to make submissions. They also shall have the right to present and challenge evidence, and

  3. make its report available to the Vice-Chancellor and the staff member as soon as reasonably possible.

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22.14

If the review committee decides that fair process was not observed it will report this fact to the Vice-Chancellor setting out its reasons, specifically identifying what failures of process have taken place.

22.15

If the Vice-Chancellor receives a report to the effect that fair process was not observed, he or she will reconsider his or her decision in the light of the review committee's report but may first take such steps to remedy the perceived unfairness as seem to him or her to be reasonable.

22.16

In reconsidering his or her decision the Vice-Chancellor will consider:

  1. measures to avert the termination or avert or minimise the terminations;

  2. measures to mitigate the adverse effects of the termination(s). Such measures may include redeployment, voluntary early retirements, secondments or offers of voluntary separation packages.

22.17

The Vice-Chancellor's decision will be final, provided nothing in this clause will be construed as excluding the jurisdiction of any court or tribunal which, but for this clause, would be competent to deal with the matter.

Benefits on Retrenchment

22.18

Once the foregoing steps of this clause have been exhausted, the Vice-Chancellor may terminate the employment of an academic staff member who is excess to requirements. Such termination is referred to in this clause as "retrenchment".

22.19

On retrenchment, an academic staff member will be entitled to the following severance payment or given greater notice or compensation specified in the staff member's contract of employment.

 

Service                                           
Severance Pay
Up to the completion of 2 years 4 weeks pay
2 years and up to the completion of 3 years        
6 weeks pay
3 years and up to the completion of 4 years
7 weeks pay
4 years and over 8 weeks pay

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Use of Sick Leave

22.20

The periods of further employment of an academic staff member under sub-clauses 22.7 and 22.9 will be extended by any periods of certified sick leave taken during such periods and taken in accordance with this Agreement.

Letter of Certification

22.21

An academic staff member who is excess to requirements may request a letter signed by the Vice-Chancellor certifying that he or she is the occupant of a position deemed to be surplus to the requirements of the University. A staff member who applies for a position in a university may notify that University that he or she is a holder of such a letter of certification. In such a case the University will ensure that the selection committee concerned is aware of the letter of certification.

Leave, Expenses and Maintenance of Salary

22.22

From the time an academic staff member receives notice under this Agreement that he or she is excess to requirements, he or she will be entitled to reasonable leave as determined by the Vice-Chancellor with full pay to attend necessary employment interviews. Where expenses to attend such interviews are not met by the prospective university the staff member will be entitled to reasonable travel and other incidental expenses incurred in attending such interviews as determined by the Vice-Chancellor.

22.23

If an academic staff member is redeployed to a permanent position elsewhere in the University (i.e. involving a geographic relocation) as an agreed measure to mitigate the effects of his/her position being surplus to requirements and it is not reasonably practicable for the staff member to remain in his or her existing residence, the staff member will be entitled to all reasonable expenses as determined by the Vice-Chancellor associated with moving household to a new locality.

22.24

Any reasonable costs and charges as determined by the Vice-Chancellor associated with a programme of retraining as an agreed measure to mitigate the effects of his/her position being surplus will be reimbursed to the staff member.

22.25

Where, as an agreed measure to mitigate the effects of an academic staff member being surplus to requirements, the staff member is redeployed to a lower level position, placed on a programme of retraining or otherwise maintains an employment relationship with the University, but in circumstances which would provide a reduced income, normal salary will be maintained during the arrangement for the applicable period described in sub-clause 22.9 of this Agreement; however where the employment is ultimately terminated, the periods described in this clause and in sub-clause 22.9 of this Agreement are not cumulative.

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23 TERMINATION OF EMPLOYMENT

23.1

All decisions to terminate the employment of a staff member must be in accordance with this Agreement.

The only circumstances under which a decision to terminate employment can be taken are:

  1. Probation (sub-clause 8.2 and clause 17)

  2. Research Continuing Employment (Contingent Funded) (clause 13)

  3. Redundancy (clauses 21 and 22)

  4. Discipline (clauses 19 and 20)

  5. Ill Health (clause 25)

  6. Traineeships (Schedule E)

23.2

Prior to the termination of a staff member, the University will ensure that any procedural step related to the termination that is required by this Agreement to be undertaken by the University is fulfilled and similarly any payment required to be made by the University is made.

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24 WORKPLACE FLEXIBILITY

24.1

The University and a staff member may agree to make an individual flexibility arrangement to vary the effect of terms of this Agreement if:

  1. the arrangement deals with structuring a pattern of working hours (within the span of hours in this Agreement) to enable full time general staff members employed on a continuing or fixed term basis or to work on an annualised basis for a portion/s of a year receiving salary averaged on a fortnightly basis across the whole year;

  2. the arrangement meets the genuine needs of the University and the staff member in relation to one or more of the matters mentioned in paragraph (a);

  3. the arrangement is genuinely agreed to by the University and the staff member, and

  4. the staff member has had at least three working days to consider the proposal.

24.2

Arrangements made in accordance with this clause are subject to the approval of the Director, Human Resources Services Division.

24.3

Where the University proposes an individual flexibility arrangement the University will inform the staff member that they may seek advice from the NTEU.

24.4

The University must ensure that the terms of the individual flexibility arrangement:

  1. are about permitted matters under section 172 of the Fair Work Act 2009; and

  2. are not unlawful terms under section 194 of the Fair Work Act 2009; and

  3. result in the staff member being better off overall than the staff member would be if no arrangement was made.

24.5

The University must ensure that the individual flexibility arrangement:

  1. is in writing; and

  2. includes the name of the University and the staff member; and

  3. is signed by the University and the staff member and if the staff member is under 18 years of age, signed by a parent or guardian of the staff member; and

  4. includes details of:
    1. the terms of this Agreement that will be varied by the arrangement; and

    2. how the arrangement will vary the effect of the terms; and

    3. how the staff member will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

  5. states the day on which the arrangement commences.

24.6

The University must give the staff member a copy of the individual flexibility arrangement within 14 days after it is agreed.

24.7

The University or staff member may terminate the individual flexibility arrangement:

  1. by giving no more than 28 days' written notice to the other party to the arrangement; or

  2. if the University and staff member agree in writing at any time.

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25 Termination of Employment on the Grounds of ill Health

25.1

The Vice-Chancellor may require, in writing, any staff member whose capacity to perform his or her duties is in doubt to undergo a medical examination by a medical practitioner chosen by the University at the University's expense.

25.2

The Vice-Chancellor will provide the staff member with written notice of not less than one month that the medical examination is required. Where the staff member elects to apply to the staff member's superannuation fund, prior to the expiry of the period of notice, for ill-health retirement or temporary disability benefit under the rules of the superannuation fund, the requirement for a medical examination under sub-clause 25.1 will lapse and no further action will, subject to sub-clause 25.3, be taken by the Vice-Chancellor under this clause. If the superannuation fund decides that the staff member is not entitled to ill-health retirement or temporary disability benefit under the rules of the superannuation fund, then the requirement for the staff member to undergo a medical examination, in accordance, will apply.

25.3

Where the superannuation fund decides that the staff member, following a period of receipt of a temporary disability benefit, is capable of resuming work and the Vice-Chancellor elects to dispute this decision, the Vice-Chancellor may proceed in accordance with this clause without further recourse to the provisions of sub-clause 25.2.

25.4

A copy of the medical practitioner's report will be made available to the Vice-Chancellor and to the staff member. If the medical examination reveals that the staff member is unable to perform his or her duties and is unlikely to be able to resume them within a reasonable period, being not less than 12 months, the Vice-Chancellor may terminate the staff member's employment by providing the period of notice required by the staff member's contract of employment or the period of 6 months, whichever is the greater.

25.5

If within 10 working days of the report being made available and if the staff member or a person acting on their behalf so requests, the Vice-Chancellor will not terminate the employment of the staff member in accordance with sub-clause 25.4 hereof unless and until the findings of the report are confirmed by a panel consisting of three medical practitioners, one of whom will be appointed by the University, one by the staff member or by a person acting on his or her behalf, and one by the President of the State Branch of the Australian Medical Association. The Panel will not include the practitioner who made the initial report.

25.6

In making an assessment as to whether or not a staff member is unable to perform his or her duties and is unlikely to be able to resume them within a reasonable period, the medical practitioner or panel of medical practitioners appointed pursuant to this clause must, as far as possible, apply the same standards as are used by the staff member's superannuation scheme, if any, in determining qualification for the payment of a disablement pension or other similar benefit.

25.7

If the staff member wishes to provide additional information, the staff member will have no less than one month from the notice referred to in sub-clause 25.2 in which to produce a medical report from his or her own medical practitioner assessing his or her capacity to perform his or her duties. This report will be considered by the Vice-Chancellor prior to making a final decision under sub-clause 25.3.

25.8

The University may pay part or all of the period of notice referred to in sub-clause 25.4 (whether it is the period set out in the staff member's contract of employment or the 6 month period) in lieu. If the University decides to make a payment in lieu, the amount of the payment must equal the total of all amounts the staff member would have received had the staff member's employment continued to the end of the required notice period.

25.9

These provisions will not displace or override any existing State or federal workers compensation schemes contained in any applicable workers compensation legislation.

25.10

A failure by the staff member to undergo a medical examination in these circumstances set out in this clause will constitute evidence that the staff member is unable to perform the duties required and may result in the termination of the staff member's employment. If the staff member's employment is terminated under this clause, the staff member will be entitled to the period of notice referred to in sub-clause 25.4. If the University makes a payment in lieu for part or all of this period of notice, the payment will be calculated in the manner set out in sub-clause 25.4.

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Deakin University acknowledges the traditional land owners of present campus sites.

22nd August 2012