Type
Article
Category
The university
Unions

My day at Fair Work

The views in this essay are my own and shouldn’t be read as representative of those of the National Tertiary Education Union.

 

On Thursday 29 July, I went to Fair Work. I was there with representatives from the National Tertiary Education Union (NTEU) and a few other casual academics for a conciliation conference with La Trobe University.

Like over a dozen other universities around Australia, La Trobe is facing a wage theft case, resulting from the piece rates they pay for marking. The university’s guilt isn’t in question; they’ve admitted it. Rather, we were at Fair Work to come up with a method for assessing how much they stole and how to prevent it happening again.

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The NTEU is obviously in the right, and La Trobe is obviously aware of it, but their approach to the problem is complacent, cynical and unpersuasive.

The issue basically hinges on the marking piece rate. Unlike most universities, La Trobe applies a universal formula of 4000 words of marking per hour. On this basis, the university assigns you a maximum number of marking hours, which they arrive at by multiplying the number of your students by the total number of words they’re meant to produce. This formula is designed to dramatically understate the time it takes to mark, meaning academics must either rush the job (and suffer the slings and arrows of bad student feedback) or work for free, for hours. I believe that my students deserve nuanced feedback on essays that have taken them days, if not longer. So like many other sessional academics, I typically work for free.

Because the wage theft claim stretches back six years (the statute of limitations), to back pay us, La Trobe needs to come up with a revised piece rate it can apply retroactively. But instead of developing this collaboratively with casuals and the union, the university outsourced the task of figuring how much it had stolen to KPMG, a multinational consultancy firm which bagged a revenue of $45.68 billion in 2021. Quite reasonably, the NTEU protested that the extent of historical underpayment can only be accurately assessed with input from casuals and the union.

La Trobe, however, wants to minimise this input, for fear it will push up the costs. To be clear, this isn’t merely my imputation, the university explicitly articulated this objective during the hearing. After the NTEU reiterated their proposal for a joint working group including the union and casuals, the La Trobe representative replied,

It all sounds really lovely, but when the rubber hits the road, the university is on the hook to the Fair Work Ombudsman … a joint working group isn’t something we find palatable given we’re on the hook.

The La Trobe representative protested that involving casuals would render any data gathered void. Casuals might game the system by overstating their hours in order to win higher pay. Admittedly, graft is something of a problem at La Trobe. The Vice Chancellor, for example, annually pays himself a salary $300,000 larger than the Prime Minister’s.

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In addition to the Fair Work case, the Fair Work Ombudsman and Wage Inspectorate Victoria are also investigating La Trobe. The university wants to be seen to be acting in good faith.

Consequently, on May 9, La Trobe HR sent out an email inviting casuals to claim the additional hours we’d worked that semester. They claimed the results would help them formulate a new piece rate. So few casuals followed the instructions in La Trobe’s email, however, that when pressed, the university reps refused to reveal the actual number.

I think I remember the email nestled in there between a notice about Staff Wellness Day and an invitation to join management in farewelling a Dean or Provost who, after great service to La Trobe (overseeing many redundancies) was now moving on to exciting new opportunities (overseeing redundancies elsewhere, on a higher salary). In other words, it was intended to be ignored.

And even if casuals opened the email, as the NTEU lawyers pointed out, the idea that we can claim additional hours flies against everything we are told, repeatedly. We’re paid a piece rate, and it’s limited. We can’t claim beyond the set maximum. It’s there in your contract. Your employment supervisor explains it apologetically, and encourages you to rush the job. If you try to claim the hours you actually worked, it generates a HR error that will hold up your pay and earn you a rude email. If you push the issue, you won’t be paid—and you may not be re-hired.

In fact, as I explained to the hearing, on May 5—four days prior to the HR email—I received a different email from HR. It informed me that the maximum number of hours I could claim had been lowered from 56 to 50, to take into account the students who had pulled out before census. I took it for what it was: a direct instruction to not claim more than 50 hours.

As I began to explain that I had worked up to 30 unpaid hours for marking alone, I was cut off, and told that the purpose of the hearing was to discuss systematic solutions.

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Let’s discuss systematic solutions.

La Trobe wants “guidelines” establishing how long marking should take, to avoid casuals claiming too much. The NTEU quite correctly argued that this is basically the status quo. Instead, the union proposed a time sheet system, in which casuals record the number of hours they actually work.

Time-sheets might be marginally better, but they won’t end wage theft. Casuals have to reapply for their jobs every semester, and sometimes even more frequently. It’s plainly obvious that under a timesheet system, there will be pressure to under-claim, for fear of not being rehired. At best, timesheets may amount to a slightly more generous albeit concealed piece rate. Job security would ensure we could demand correct pay without fearing reprisal. But that type of systematic solution is outside the purview of the Fair Work case.

Alternately, Fair Work could ban piece rates entirely—and not just for marking. It’s within their power. Last year, they banned piece rates in horticulture. The alternative to piece rates is to pay casuals a regular wage based on permanent staff members’ salaries, but with the legally required 25 percent casual loading. It wouldn’t end job insecurity, but it would end wage theft. But that type of systematic solution is also outside the scope of the hearing.

In fact, the vast majority of wage theft at universities is outside the scope of the hearing—and that’s at the heart of my discontent. We aren’t paid for consultation hours or after class conversations with students. We aren’t paid for emails or administrative work like entering marks, updating subject websites or interacting with IT and HR. These are only the obvious examples.

There are also more hidden forms of wage theft. For example, casuals are desperate to produce academic publications because it’s impossible to get a job without them. Universities claim this research to boost their rankings and access funding, but they don’t pay us for it. We are sometimes paid for a few hours of meetings, but never enough. Theoretically, preparation time is factored into the piece rates for different types of teaching. For example, a standard one-hour lecture includes two hours of preparation time. Last semester, I lectured for two hours per week and I typically spent a day and a half preparing.

These little insults aren’t the worst of it. Last semester, La Trobe didn’t pay me a cent until two months after I’d started work, thanks to a dysfunctionally under-staffed HR system. The fact that we even need to submit timesheets to be paid our contract hours is idiotic and unnecessary, the result of systematic distrust of casuals born of institutional austerity. Because I’m a casual, I can’t propose subjects or contribute to a departmental culture. I can’t take on honours or postgrad students—I’ve recently had to turn down 5 supervision inquiries.

And then, there’s the brutal reality of insecure work. The university hangs us out to dry with no pay during the winter and summer months between semesters. I manage because I have a second job. We have no sick pay, no leave, no redundancy entitlements. To be frank, the suggestion that this untenable situation is adequately compensated by a 25 percent casual loading makes me want to throw a brick through a window. I don’t have a secure job, and because I can’t see a pathway towards one, I can’t plan a future. This is the predicament of all casualised academics, and it’s fucking awful. But naturally all that was beyond the scope of the hearing.

*

I left Fair Work a little before the session ended. The weather was foul, and I had to rush to ACU to cover a friend’s tutorial. He had just tested positive for Covid, and naturally he’s not entitled to sick pay.

While walking home, I reflected on the experience. Here’s what I concluded.

Fair Work imposes arbitration between workers and employers, as though the two sides were equals in strength and virtue. As their conduct amply demonstrates, university managers have no integrity. Dictatorial restrictions on industrial action ensure that workers’ strength is constrained.

Fair Work, established by Kevin Rudd in 2009, is a long-term product of the IR system established by Bob Hawke’s 1983 Prices and Incomes Accord. It is inherently hostile to workers, and I knew this going in. But directly experiencing it made the clarified its structural inequity, and concretised my critique of it.

I’m not saying wage theft cases are a waste of time—they aren’t. I don’t know what kind of payout I’ll receive, but something’s better than nothing. In a few cases I’ve heard of, back payments for marking have come to as much as ten thousand dollars. And the avalanche of wage theft cases have shone a spotlight on the abusive employment practices that have the become standard practice at universities.

At the same time, I worry that Fair Work cases are a costly rabbit hole. They are slow-moving, extremely constrained and very expensive. They elevate legal argumentation over rank and file organising and give universities any number of opportunities to prevaricate. With no shade implied to my heroic NTEU lawyer comrades, this process risks breeding apathy among union members. We need systemic improvements urgently, not a piecemeal backpay case every six years.

We need to strike, as much as possible, timed so it hurts. Everything should be subordinated to strike readiness. We must be coldly realistic about compromise. I couldn’t care less about a marginally better piece rate—I want a future, we all do. We should be militant. We should demand the sacking of the Vice Chancellors and the managers responsible for this state of affairs. They should face charges for wage theft.

And we should be willing to strike illegally, including in defiance of Fair Work. It’ll give the union lawyers a chance to really shine. And anyway, what’s Fair Work going to do—fine us? The universities already steal our wages. Or maybe the universities will sack us? We’re casuals. We lose our jobs every few months.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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Daniel Lopez is a casual lecturer in philosophy and a Commissioning Editor for Jacobin.

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