The extent, nature and consequence of labour hire employment in Victoria
The Victorian Branch of the Australian Education Union (AEU) welcomes this opportunity to contribute to the Victorian Government’s Inquiry into the Labour Hire Industry and Insecure Work. The AEU represents around 48,000 employees in Victoria’s public education system and many of these employees work in sectors that are experiencing increases in the levels of casualised and insecure employment. As will be described in more detail below, the detrimental effects of insecure employment do not only impinge upon the welfare of our members, they are also inimical to the provision of quality education outcomes that are so important for each individual Victorian and the state’s economic and social well-being.
The following submission will addresseach of the Terms of Reference that are relevant to the AEU’s members and present a range of options for reducing the prevalence of insecure employment in the public education sector.
a)The employment status of workers engaged by labour hire companies;
i)the use of labour hire in particular industries and/or regions;
For AEU members, employment by labour hire companies is currently most prevalent for casual relief teachers (CRTs).Although the exact number of CRTs working in Victoria is unknown, the Victorian Auditor General’s Office (VAGO) estimated that there were around 13,600 registered teachers identifying as CRTs in 2012.[1]VAGO also stated that, since ‘2005, the number of CRTs employed through agencies has increased by 36 per cent from 1,712 to 2,330’.[2]In 2015, 27 per cent of 555 CRTs surveyed by the AEU reported that they worked for an agency. The definition of ‘agency’ used in the VAGO report does not refer exclusively to labour hire agencies that directly employ CRTs;it also includes agencies that place CRTs at schools whereby the school council becomes the employer. One of the main concerns both for schools and the AEU’s members, is the high level of variability between agencies and across regions, as are common issues around defining which party – school or agency– is the actualemployer for a range of industrial purposes (this will be discussed further below). Information from the Victorian Institute of Teaching (VIT) suggests that there may be 14,500 CRTs in 2015; this means that up to 1 in 5 school teachers are employed on a casual basis.
Although other sectors employing AEU members have high proportions of casualised and fixed-term contract labour (particularly in the TAFE, Adult Multicultural Education Services [AMES] and Education Support [ES] sectors), the use of labour hire firms is not yet as prevalent. There is a strong potential that the implementation of the NDIS and consequential changes to disability services funding will see an increase in labour hire agency use in that area.
ii)the use and impact of labour hire arrangements in the supply chains of particular sectors, and the roles and responsibilities of various entities in those supply chains;
iii)the application of industrial relations laws and instruments;
iv)the legal rights and obligations of labour hire employees, companies and host organisations/entities and any ambiguity that exists between them;
Labour hire firms are most commonlyutilised in the schools sector for the employment of CRTsand ES staff. The variability across agencies in fees charged, pay-rates, and other conditions means that there are differential outcomes for both schools and employees. For example, some labour hire agencies charge commissions to teachers for supplying work whilst others charge schools.Other agencies charge an annual fee or sign-up fee, whilst some charge a commission set as a percentage of daily or weekly earnings. There are also different industrial arrangements for CRTs employed by schools and those employed by agencies. The latter are covered by the basic pay rates and conditions contained in Education Services (Teachers) Award 2010 although these rates and conditions are not always adhered to. Members report that many agencies pay CRTs below the minimum daily rate stipulated for their level of experience by the Award. The conditions and pay rates of school-employed CRTs are set by a Ministerial Order issued under the Education and Training Reform Act (2006). The daily pay rate available to CRTs covered by the Ministerial Order is $293.30 whilst teachers employed by agencies often report a daily pay rate (net of commission)of around $235. This rate is much lower than those applicable to ongoing or fixed-term teachers employed under the Victorian Government Schools Agreement 2013 (VGSA).CRTs employed by these agencies may also have inferior conditions than those required under the Ministerial Order for school-employed teachers. It has been reported to the AEU that some agencies pay higher rates if a CRT obtains his or her own Australian Business Number – a strong indicatorof sham contracting arrangements.
Conditions also vary across agencies covered by the Award. Many agency contracts place restrictions on teachers applying for fixed-term contracts or ongoing work at schools in which they are placed (or have been placed in previously); whilst policies around cancellations of work andmeal breaks also vary. Many CRTs and casually employed people in general are especially disadvantaged when they have paid for expensive childcare arrangements only to have work cancelled. The provision of feedback from schools and access to professional development (PD)also differs from agency to agency although the consensus from members is that this is generally minimal. PD opportunities are very important to CRTs who must ‘engage in at least 20 hours of a defined quantity and range of professional development (PD) activities’in order to maintain their teacher registration.[3] CRTs are less able to access PD provided by the Department of Education and Training (DET) through schools. Many CRTs are beginning teachers and only provisionally registered. Often theystruggle to achieve the 80 days of practice required for full registration. In general, pay and conditions are superior for CRTs employed directly by schools. The AEU’s 2015 survey of CRT members found that only 26 per cent of those employed by agencies were positively disposed towards their pay and conditions.
There is little support available to help provisionally registered CRTs meet proficiency standards.Over a long period of time there has been a lack of interest from the DET to properly support CRTs either through PD provision or in providing genuine opportunities for collegiality, networking and peer engagement, including feedback on their practice. Given the importance of CRTs to the provision of high quality education, they are replacing teachers in classrooms every day and are responsible for ensuring the continuation of the educational program in the teacher’s absenceit is disappointing that the Department has left responsibility for CRTs to agencies and individual schools.
The following comments from the AEU’s 2015 CRT Survey participants are broadly indicative of a common experience with agencies.
The agency pay rates, fees and associated costs need to be investigated and changes need to be made to benefit CRTs. CRTs are wearing the costs. With 1 in 5 teachers being CRTs, 20% of teachers are being affected. Why is Victoria the only state where agencies can do this?I earn $47.32 per hour when I am paid directly through a school, which is $283.92 gross per 6 hour day. My agency… pays a set (hourly) rate of $41.28. That is, $227.04 gross per full day at the Special Developmental School (5.5 hours) or $247.68 gross per full day at most mainstream government schools (6 hours). Fair Work Australia has told me I am being underpaid according to the award (I have 10+ years’ experience) and even though the agency has been approached about their pay rate, they still pay all CRTs the same rate ($41.28 per hour). If I do proceed with this, I would be paid more (according to the award rates) than a graduate. Therefore, you would assume that the agency will be more likely to give work to the cheaper teacher. Casual relief teacher
It would be great if the education department had a central booking system. We could then work in a variety of schools and don't have to say no when a second schools rings you. This is why I work through an agency - I deal with just one phone call a day. However, a fair whack of money is taken off my pay for this luxury. Casual relief teacher
A useful campaign for CRTs would be this:'Call five first' - if every assistant principal called a bank of five CRTs before ringing an agency it would benefit CRTs. $283 per day is much better than $230-$240 through an agency. Casual relief teacher
One important issue for me is getting feedback on my teaching. I did once get it from the agency by directly asking. One of the things I was told was why I was no longer invited to work at a particular school, which I never would have discovered had I not asked. Apart from that the agency never gives feedback; neither do the schools I work directly for. How can I effectively improve the work that I do without appropriate feedback?Casual relief teacher
The agency pay from … was $90 less than what I get from the school directly. Casual relief teacher
A lot of schools feel stuck with the agencies not allowing them to employ any CRTs directly even when these teachers are not with their agency. It's a real issue because being with an agency is so unfriendly and lonely, let alone less money. Being employed directly is so much better but schools are being scared by the agencies to do otherwise. Casual relief teacher
We have teaching qualifications to be recognised as teachers and not work for agencies who take our pay to fill their pockets. Unfortunately most of the schools want to go through agencies. Something needs to be done so we get our proper pay and it’s not deducted by agencies. Casual relief teacher
Not all comments on agencies were negative, demonstrating the high degree of variability that exists between them.
Both CRT agencies I have worked with have been great. In particular …. has offered professional, repeat jobs at regular schools to develop relationships and have offered positive feedback if it has been given from a school.
v)allegations that labour hire and sham contracting arrangements are being used to avoid workplace laws, and other statutory obligations, and the current effectiveness of the enforcement of industrial relations, occupational health and safety and workers compensation laws;
vi)the extent and impact on long-term workforce needs of the practice of replacing permanent employees, apprentices and trainees with labour hire workers.
There is substantial evidence of the use of labour hire and sham contracting arrangements being utilised to avoid workplace laws in the sectors employing AEU members. An example of an agency paying below Award rates was provided above whilst the encouragement of some teachers and other education workers to obtain ABNs by agencieswith whom they are solely engaged is a clear indication of sham contracting arrangements.
The AEU is aware that sham contracting is particularly prevalent for education support personnel, and instructors and instrumental music teachers who are employed by school councils rather than the DET.In one example, an ES member was employed as an independent contractor by a school for 19 years before being made an ongoing employee. Six years later when that employee was made redundant, the school calculated a redundancy based only on those six years of employment despite the fact that there had been no change in the work performed over the 25 year period.
It has also been reported that school councils are at timesemploying trainees undertaking ES studies. Reportedly these trainees are too frequently not suited to their allotted tasks and their work/learning activities do not seem to be aligned with obtaining meaningful qualifications in the field. These trainees often have little chance of obtaining a job at the school that has employed them unless it is to replace, at a lower salary rate, another ES staff member whose contract has expired.
High levels of school autonomy and insufficient, single-line budgets have forced manyschools to outsource the employment of staff with a view to reducing staffing costs. However, by doing so they are also diminishing the appeal of the industry to potential applicants who will increasingly prefer to offer their skills to other industries. The precarious nature of casual employment, especially when saddled with the extra disadvantages of working for a labour hire firm, has been widely reported to have negative health outcomes for employees.[4] For education staff, there are extra stresses and risks caused by working in unfamiliar workplaces with unfamiliar students.
b)The extent, nature and consequence of other forms of insecure work in Victoria
iv) the impact of insecure work on workers, their families and relationships, and on the local community, including financial and housing stress;
v) the social and economic impacts for Victoria.
The rate of insecure employment in public schools and TAFEs has been growing over recent years and this trend is revealed in a range of statistics. For example, the proportion of Government Teaching Service staff employed on fixed-term contracts has grown from 6 per cent in 1995 to around 19 per cent in 2011.[5] The DET Annual Report shows that that the proportion of Teaching Service staff employed on a fixed-term or casual basis increased from 23 per cent in 2013 to 26 per cent in 2015; the proportion of ES staff employed in this manner increased from 64 per cent to 65 per cent over the same period.[6] Relative to the gender distribution of the workforce, women were over-represented in these insecure employment categories; nearly 26.6 per cent of female staff were employed on a fixed-term or casual basis compared to a proportion of just 21.4 per cent for male staff.[7]The proportion of teaching staff in insecure employment in Victoria is around twice that of New South Wales where around 91 per cent of staff are employed on an ongoing basis.[8] There has been unwillingness for the DET to monitor the use of contracts in schools and to enforce the industrial agreement which proscribes the allowable reasons for employment on a fixed team basis. There are insufficient resources provided to ensure accountability and compliance with the VGSA 2013 in the context of decentralised employment.
ES and teaching staff in government schools experience a high rate of contract churning or rollovers due to the decentralised nature of workforce planning and uncertain funding streams for schools. The AEU is aware of one teacher who was engaged under 14 successive fixed-term contracts, at the same school, without being offered an ongoing position. There are also many ES and TAFE teacher members in similar situations. In a survey of early career teachers conducted by the AEU in 2014, more than 65 per cent of respondents reported that they were employed on fixed-term contracts.
Data also shows that insecure employment in TAFE has been growing in recent years. According to data from the Victorian Public Sector Commission, fixed-term or casual employees employed in the TAFE and Other Education Entities sector (mostly comprising of TAFEs and AMES, the latter of which has a history of high levels of casual employment) has grown from 39 to 44 per cent between 2011 and 2014.[9]The move to a voucher funding system and open competition with private providers has helped to drive this change in the TAFE sector. There has been an estimated loss of around 3000 teaching jobs due to changes to the funding system. As a result of these changes, TAFEs are increasingly relying on third-party providers for course delivery in order to avoid the wages and conditions required by their Agreement. These third-party providers do not face the same staff qualification requirements as TAFE teachers and this, along with a lack of oversight by TAFEs and regulators, has diminished the quality of education and training for the students involved. As previously mentioned, the move to a similar funding system for disability services in the NDIS is likely to also increase the proportion of staff in insecure employment arrangements in that sector. It has been reported to the AEU that one provider in the disability sector has hired 39 of 41 staff as casuals. There is a range of well-known negative consequences for people in insecure employment as noted in the Inquiry’s Background paper:
- unpredictable and fluctuating pay
- inferior rights and entitlements
- limited or no access to paid leave
- irregular and unpredictable working hours
- uncertainty regarding the length of a job, and
- a lack of any say at work over wages, conditions and work organisation.[10]
These and other negative aspects of insecure employment are reflected in the following comments that have been collected in a range of surveys of AEU members. It should also be remembered that insecure work in the public education sector does not only affect the wellbeing of its employees; it also reduces the capacity of the system and the workforce to deliver quality learning and welfare outcomes for Victorians. In the AEU’s 2014 Beginning Teachers Survey, 70 per cent of contract teachers agreed that the requirement to reapply for positions had a negative effect on their teaching. Staff churn adversely affects the consistency of program delivery and teacher-student relationships. The comments below are typical of the experiences of AEU members employed on an insecure basis.