Enterprise bargaining allows employers and employees to negotiate terms at the workplace level, focusing on wages and working conditions. This approach has been a fundamental part of Australia’s industrial relations system since the early 1990s, allowing employment terms to be tailored to workplace-specific needs, thereby improving flexibility and productivity. Recent reforms, particularly from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, have reshaped bargaining. The reintroduction of multi-enterprise agreements has facilitated more collaborative negotiations across sectors, especially education and healthcare.

As of the September 2024 quarter, the Department of Employment and Workplace Relations reported over 933 new agreements, covering 340,000 employees, with an average annual wage increase of 3.6%. This underscores the growing significance of enterprise bargaining in securing better pay and conditions for Australian workers while driving flexibility and productivity in business.

The education sector faces increasing challenges as it navigates the complex landscape of recent Fair Work Act (FWA) changes. These include the right to disconnect, limits on fixed-term contracts, the redefined independent contractor regime, and the criminalisation of wage underpayment.

Right to Disconnect

The Right to Disconnect under the recent FWA amendments allows employees to refuse work-related communications outside their ordinary hours unless such refusal is unreasonable. It is important to review the EA through the lens of this new entitlement and whether any clauses could create risks. As the EA is a binding document approved by the Commission, clauses that require employees to engage in work-related tasks outside their designated tasks, if drafted in a way that is reasonable and appropriate in the circumstances, might ensure these practices can continue, if it is reasonable.

Risks are likely to arise when dealing with:

• Overtime and additional hours;

• Co-curricular duties that extend beyond ordinary hours;

• Participation in extra-curricular activities if time commitments are not clearly defined and communicated;

• Boarding house staff, particularly when dealing with parent or student issues;

• Training or professional development obligations outside rostered hours;

• Consultation processes that may require responses outside of working hours.

Casual Employment

The FWA introduces a revised definition of casual employment, focusing on the practical reality of the employment relationship rather than contractual terms. Casual employees can now formally request conversion to permanent employment after six months (12 months for small employers).

Independent schools must review their agreements and ensure that any terms dealing with conversion to permanent employment abide by the reforms.

Fixed-term contracts limitations

New restrictions on fixed-term contracts limit their maximum duration to two years, with a single renewal option for up to an additional two years. Trending issues.

Some of the key issues schools are being asked to consider are addressed in the following parts to this article. 

Co-curricular responsibilities: Reviewing remuneration and workload

Schools are increasingly reviewing how co-curricular responsibilities are recognised and compensated. There are various models to how this is done and there is no one-size-fits all approach. 

While some schools still address co-curricular involvement as voluntary, or as an inherent part of a teacher’s overall workload, schools are increasingly recognising and rewarding participation with honorariums and allowances. 

For example, recent enterprise agreements have implemented structured systems where co-curricular participation is assigned a monetary value based on factors like time commitment and student involvement. Others offer fixed allowances to educators undertaking these additional duties, while some set an expectation that middle leaders will participate in co-curricular for no additional benefit. In some cases, co-curricular involvement remains voluntary but may be recognised through discretionary payments to recognise and appreciate the extra effort.

Schools that have or will implement schemes to remunerate and recognise staff involvement should ensure that their agreement has mechanisms to periodically review the remuneration and workload associated with co-curricular programs. Given that the nature and demands of these programs can evolve over time, annual or regular assessments ensure that compensation remains fair and sustainable, and that as the needs of the school change, the enterprise agreement can remain flexible. By balancing considerations such as workload management and budget constraints, schools can adapt to changes throughout the life of the agreement, maintaining equity and acknowledging the valuable contributions of their staff. 

Term-time employment and expanded school attendance requirements

The length of the school year, staff attendance expectations and the right to disconnect continue to be significant bargaining issues. Some agreements seek to extend staff attendance beyond the traditional term weeks by introducing additional professional duties or requiring work during an additional preparatory period before students return or immediately prior to the Christmas holidays.

In reviewing recent agreements, our team has identified that some agreements specify a set number of attendance weeks, including professional development and student-free days, while others allow flexibility for additional work in leadership roles and pastoral care. We have also identified other approaches setting a maximum number of required attendance days to enable staff flexibility, which allow schools to continue operating under existing practices unless variations are negotiated.

Schools considering an extension of staff attendance to achieve certain outcomes (such as training or early preparation) should ensure that any additional requirements are appropriately compensated or negotiated against other terms and conditions.

Professional development: Scheduling and expectations
Another growing trend is the structuring of professional development (PD) within agreements. Schools are increasingly specifying PD obligations, including attendance on student-free days, structured after-hours training, and compliance activities.

Some agreements mandate a set number of professional development days per year, while others require a minimum number of PD hours outside normal duty hours. In some cases, PD obligations are subject to consultation, with agreements requiring schools to work with staff to determine an appropriate balance between structured training and self-directed professional learning.

A key bargaining issue is whether PD should occur outside regular teaching hours and, if so, whether it should be compensated. Schools adopting mandatory PD outside standard hours must ensure appropriate consultation and recognition of additional work.

Leadership structures: The move towards tiered management

We have noticed that several schools are restructuring academic leadership roles to create clearer pathways and more equitable workload distribution. Traditionally, Heads of Department (HODs) have been appointed with a fixed allowance, but some agreements are now implementing tiered structures to distribute workload and enable succession planning.

A common approach involves classifying HODs based on department size, with different levels of leadership receiving adjusted allowances. Other agreements apply a broader classification for promotional positions, with salary and time release varying according to subject area workload and responsibility. Some frameworks move away from the traditional HOD model, instead adopting a positions-of-responsibility structure with multiple tiers of leadership roles.

A notable trend is the introduction of Assistant HOD roles to distribute workload and improve succession planning. Schools considering this approach should determine whether adjustments to release time or salary structures are necessary and whether such changes should be embedded within the enterprise agreement or managed through internal policy.

Workload flexibility: Extended school hours and ‘Period 0’

Our research has highlighted that some agreements are trialling more flexible teaching schedules, with additional periods before and after the standard school day. The introduction of an early-morning period and extended afternoon classes is gaining traction, offering teachers the option to adjust their daily schedules within an expanded timeframe, enabling staff to 'flex' their hours to achieve a greater work/life balance.

Some agreements allow schools to structure timetables to suit operational needs but place limits on the proportion of work that can occur outside standard hours. Others permit variations to working hours but require that these be negotiated on either an individual or school-wide basis.Schools considering flexible timetables must carefully manage workload expectations to ensure compliance with the National Employment Standards and enterprise agreement provisions on working hours.

Enterprise bargaining in schools is evolving to address fairness, workload management, and financial sustainability. In a large part, the current bargaining trends are responsive to the Federal Government's changes to the Fair Work Act to secure new ways of working, for example, where fixed term employment can no longer be offered, or where contact outside of hours is necessary.

Schools negotiating agreements should carefully consider sector trends and ensure their proposals align with legal obligations under the Fair Work Act 2009 (Cth). 

For schools reviewing their enterprise agreements, understanding sector-wide developments provides a valuable benchmark for negotiating sustainable and competitive conditions, attracting and retaining a highly skilled and engaged workforce, and ensuring modern conditions across the life of the enterprise agreement.

Please reach out to our Employment and Safety Team if you would like some assistance in identifying and managing the risks to worker health and safety in your workplace.