Thank you to everyone who has booked in a session with our industrial team to discuss UniSuper’s proposed new contract.
If you haven’t yet booked an appointment for individual advice on your contract, you can do so here.
On 28 September, we sent a list of questions about your employment contract to Julie Watkins. You can see that list here:
| Clause | Issues |
| 1.9 – Policy and Procedure | There is nothing that binds the fund to its policy nor is there any obligation to provide training to staff. This must be included in the contract. |
| 3.1 – Fixed remuneration | We note your advice regarding the contractual set off clause. For the avoidance of doubt, we do not concede that the clause, as currently drafted, would effectively set off all monetary allowances as set out in the Award. Further, a set off clause is not capable of setting off the non-monetary aspects of the annualised salary regime in respect of advice to the employee about how the annualised salary is calculated pursuant to cl 17.1 of the Award. We would appreciate your confirmation that UniSuper will provide this written advice to employees, as it has not done so in the template contract. |
| 3.5 – Authorised deductions from remuneration | This clause is not capable of lawful operation. Neither sub-clause describes a permitted deduction within the meaning of s 324 of the Fair Work Act 2009 (the FW Act).If UniSuper relied on this clause, UniSuper would contravene s 323 of the FW Act. Clause 3.5 should be removed. |
| 5 – Leave 18.3 Redundancy |
We note that clause 5 is expressed to the effect that the quantum of leave in the contract is subject to the Managing Leave Guide, being a policy that can be amended from to time. We assume this is an error and that it is intended that the manner in which leave can be taken. We would appreciate your clarification. There is no obligation to consult with staff prior to making any changes to these provisions. The clause should make it clear that any change must be in consultation with staff. |
| 9 – Media contact. | In the event that UniSuper atttempted to rely on the final sentence of this clause, it would contravene the NES in respect of notice of termination and, potentially, dismiss an employee in a manner that would ground a successful application for an unfair dismissal remedy. We press for the removal of this clause.
If UniSuper acknowledges the right of staff to contract the media as a whistle-blower and is committed to its legal obligations to whistleblowers, this clause should be expressly amended to identify that nothing in this clause affects an employee’s rights under statutory whistleblower protection regimes. |
| 11 – Restraint
12 – Acknowledgement |
In circumstances where this clause must be found to be reasonable to operate in Victoria, it is beyond bad faith to include a clause at 12 where staff acknowledge that it is reasonable without it having any connection to their role.
Further, if UniSuper feel they have a claim to be made at some future time, then they should feel free to bring it. Including a one-size fits all restraint clause for all employees is likely to mean that the clause is unenforceable. Burdening staff with this in all manner of positions within the fund is unconscionable. |
| 16 – Medical examination | This clause does not formalise the operation of the Fund currently is changes it completely.
Moreover, it places a new contractual obligation on an employee where there was not one previously. Respectfully, we consider that UniSuper’s view that this “formalises” an existing arrangement is disingenuous. These matters are, as you would or should be aware, dealt with on a case by case basis. This clause deals with these kinds of arrangements on a uniform basis and is not response to the circumstances of the individual. Further, the provisions that allow for UniSuper to seek further evidence in relation to personal leave are likely beyond the scope of an employee’s rights and employer’s obligations in respect of the common notice and evidence requirements for personal leave under the NES. We press for the removal of clause 16 in its entirety. |
| 15 – Privacy | Clause 15(a) is drafted in a way that is likely to lead UniSuper to contravene the Australian Privacy Principles in respect of the collection and use of personal information. It should be removed. |
| 17 – Suspension | Stand down and suspension is dealt with in the Fair Work Act 2009 at section 524. It is a matter of discretion for the fund to suspend a staff member in circumstance such as serious misconduct.
This clause provides the fund the right to suspend staff if the fund determines it is in their best interests to do so. This is yet another significant overreach by the fund. |
| 18.1 – Termination | There are no circumstances in which UniSuper could lawfully direct an employee to take leave entitlements during their notice period. Clause 18.1(b)(ii) should be removed. |
We are still waiting to receive a substantive response from Julie on these important questions, but we will be in touch when we receive a reply.
We are excited to report that UniSuper has agreed to our demand to withdraw their threat to deprive you of a pay increase or promotion if you don’t sign the contract.
Thanks to your Union community at UniSuper, we now have a much improved starting point for any discussions you wish to enter into about your employment contract.
Remember, you now have a choice with this proposed new contract – you can remain on your current employment contract, propose amendments to UniSuper’s proposed new agreement, or agree to the proposed new agreement.
The most important thing is to be informed so that you can make the best decision for your circumstances.
We are here to assist you – book a one-on-one appointment with our industrial experts here, or call the FSU Member Rights Centre on 1300 366 378.