AAS | Events | 14-15 February 2008

Bradley Beasley Bradley Beasley holds a masters degree in law and is a legal practitioner of the supreme courts in the ACT, NSW and High Court of Australia. He specialises in industrial, employment and workplace relations and is currently a senior employment strategies advisor at the Australian National University. He has represented organisations in industrial relations and human rights at state, national and international levels. Bradley has worked in and with the higher education sector since the 1980s and held a number of honorary positions with the University of Technology in Sydney, including working as a pro bono solicitor for their Community Law and Legal Research Centre.
Bradley was a Chair of the Group of Eight Industrial concerning strategic directions, and was directly involved with the drafting and negotiating industrial instruments. He advises executives, senior managers and line managers dealing on industrial, OH&S, workers compensation, equity, recruitment, disciplinary and legal compliance matters and is an advocate before tribunals and courts when required.

I would like to thank the Academy for inviting me along here today. It is a great privilege, and I only hope that after my address you feel that it has been worth having me here.

One of the things I have found interesting about coming here is the shape of the building – it matches my profile perfectly!

I will go through a bit of an introduction in regard to what we are talking about. Then I will deal with the minefields that are related to recruitment, the challenges that you will be confronted with if you are in the recruitment process or some of the things that you may need to look at, and the responsibilities that organisations have when it comes to the recruitment process. And if you have questions, I am happy to take them and, hopefully, I will have some answers for you.

One of the things I realised when I was set down for this early morning discussion is that when I have attended conferences I have found it pretty tough on the second day, after a night out with your colleagues over dinner and a few drinks. So I have tried to make this as light in delivery as possible.

In law, the creation and formation of an employment contract is pretty much the same as formalising a marriage.

At the beginning there is an invitation that normally goes out, like when you are dating someone. Things have changed from what they used to be. Years ago, there weren't recruiters, just as today most people don't meet each other at a club or wherever but go through a dating agency. Today we have recruitment firms and so forth, and there are different ways of recruiting people. This is very important in regard to the recruitment process, because this is one of the first legal steps that you take in creating a working relationship.

Then you have the opportunity of going out for a date. On the employment side, you will see the CV that comes in and you will go through the processes of culling and then working out who is going to be the person that you meet. Regrettably, when it comes to recruitment it is not like dating: you don't have the opportunity to go out for dinner and check out whether or not she's (or he's) a bit of all right. It's a bit like what we have now, known as speed dating. The interview process is short, sweet, to the point, and you have to put questions and ascertain the qualities and attributes that the person has.

The other reason that this is very important in the recruitment process, and legally, is that this is where terms and conditions are often discussed, and it is also where employers can trip up and end up making representations that they don't want the organisation to be bound by – yet they do. So it is a very important process, because it is a bit like going into that next step, the marriage: you make that big decision, 'Well, we'll bring them on board.' I don't know whether anyone here has been divorced, but there is nothing like making that wrong choice. You are going to be living with this person for a long time if they are going to be part of your team.

As with marriage, it is legal – you either go to church and get married or you have a common law relationship which binds you, a de facto relationship. And then there are all these other laws and matters that come into play in regard to the relationship you have. If everything is going well, that's great. You don't see the men in blue, or you don't have to go to Relationships Australia, or even better, you don't have to go through the divorce process. But, like most other things, there's always a court there to deal with it

Employment relationships are a real minefield. There are all sorts of laws that you have to worry about. If it's not the judges who are making the laws that determine the relationship, it's the legislator who determines what the employers have to comply with in regard to the employment relationship, and there are so many easy ways to mess things up. So you could end up before the Human Rights Commission, you could end up before the Workplace Authority, or you could end up having a WorkCover investigation taken up against you. If you go down the common law route, you can be confronted by all different types of courts: the Magistrates Court, the Supreme Court – and, depending on how far you want to take it, the High Court. Or it may be a matter that goes to the Australian Industrial Relations Commission. These are all things that one has to take into account when engaging someone.

In the recruitment process it is important to have an understanding of the safety and wellbeing of those that you are going to be working with – particularly when it comes to those who are engaged in research. The University of Tasmania were sued just recently because when they were setting up their scientific research and so forth they hadn't taken into account certain pressure limits, and when they were putting the equipment under pressure it blew up and injured the researcher as well as one of the students. So all these factors need to be taken into account. There has to be assessment, modification and changes to equipment, to ensure the wellbeing of those who are working around you.

It is also important because if someone has a disability in regard to working in your environment, modifications need to be taken into account. If they are reasonable, then you have to do it. You can't turn around and say, 'Oh, it's too hard.' If a person is extremely young, brilliant, talented and all the rest of it, there is no reason not to engage them. And if someone is older, like myself, and extremely talented and good-looking, there is no reason just because of my age not to employ me. It is the same when it comes to race and gender. You have got to take all these factors into account in the recruitment process – and when people are engaged with you.

Some of the other challenges were touched on earlier, and something that I thought was quite nice in Professor Lawson's address was the bit about the administrators in higher education. I am referred to by my colleagues first of all as a 'fallen angel' because I am an ex-trade union official. And also, because I work for the university – the Chancelry looks after the vice-chancellor's interests – I work for the employer so I am considered as being 'on the dark side'. So we do have our own little labels.

Doing what I do, it is very important to be abreast of all changes that are taking place. The Workplace Relations Act is currently before parliament, which is looking at making changes to reverse WorkChoices. Awards have issues concerning your terms and conditions of employment, which apply across the sector. Enterprise agreements are negotiated locally between the employer and the unions. And then there is a contract of employment, which is the binding relationship between you and the university, or the employer. And other factors have to be taken into account, such as university policy, the employer's policies and so forth.

Those things are influenced considerably when it comes to external forces such as the government. In the last three years, one of the things that I have been working on is negotiating with the Commonwealth on behalf of the Go8 [Group of 8 universities] on the higher education requirements for compliance purposes, on getting those into place and ensuring that we do comply but also ensuring that, through those processes, the terms and conditions of employment are actually attractive to the staff.

The other part of this which is quite important when you are going through the recruitment process is that when you are inviting someone along to apply for a position, or if you are out there and you are going to try and influence the employer, it is important to sell yourself in regard to your abilities, your attributes and what you can bring to the position.

A very important thing which arose out of Janet Salisbury's address was issues concerning short responses that are to the point. It is the same with CVs.

The other reason for that is that when people are being interviewed and the chair of the selection committee and the panel make a decision, if someone is disgruntled with respect to an outcome they can obtain access to the interview documents through freedom of information. Consequently any decision that is made has to have merit behind it. It doesn't matter if you are going through a headhunter or whatever the case may be, there are always opportunities to be exposed, one way or the other.

I raise that because, to go back to some of the earlier points, discrimination and occupational health and safety in particular are probably two of the most significant areas in regard to exposure of an employer through the recruitment process.

So, when people are coming to the institution through the invitation, there is the preparation and placement of the ad, there are financial constraints in regard to what the institution can offer, but in higher education we are looking at ways of retaining and attracting staff. We have had a number of discussions, workshops and so forth, looking outside the box in regard to traditional ways of recruiting people. Earlier there was talk about a need for childcare centres as a way to attract and keep people, and also the different ways that we employ people. As researchers you are traditionally on rolling, fixed-term contracts. The institutions recognise that is a significant problem for people, particularly when they want to get a mortgage or something like that, they want to settle down or whatever the case may be in their private life. That is important to us, because if we don't give you some form of commitment it makes it difficult to retain good staff.

At the last round of negotiations with the vice-chancellor on our enterprise agreement, we looked at ways to attract and retain staff. We created a new beast called a RASCE [pronounced russky, standing for Research Academic Staff Career Employment], which was predominantly to do with researchers. Breaking the mould of the traditional three-year and five-year fixed-term contracts, we put in place an opportunity for the schools, faculties and so forth to employ researchers, to assist with their career and creating a launching pad for them. We created a mixed arrangement where researchers would receive, under certain circumstances, the conditions that most other staff would receive, but also they would be subject to fixed-term employment. Seven-year contracts could be offered, and then after the first seven years there would be an evaluation and commitment to another seven years. The purpose of that was to launch them internationally, and by that time, we considered, they should be in that position.

This time around, what we are considering, in discussion with other Go8s, (there is no guarantee that it is going to happen, because it is a concept which is still on the drawing-board) providing researchers with ongoing employment with the employer. In the background we would be looking at different ways of dealing with the administration. You would still be dealing with your research applications and so forth, and subject to those coming in would determine whether or not other certain severance provisions would apply. If this gets off the ground, researchers will be able to go to a bank in a better position to obtain loans and so forth.

Why am I saying that? That is significant because once you are doing your invitation, the constraints that are imposed upon you determine what you can put in your ad – how long they are going to be employed, what is expected of them, who they are going to be dealing with, who they are going to be representing and so forth.

That comes down to the dating game, the interview. That is where you do your short listing, your interviewing. You look at the qualifications of the applicants, their experience, their attributes and their suitability. In today's market there is no guarantee that you are going to get a 'perfect match'. (There used to be a show of that name on TV years ago.) There has to be some give and take, and the institutions are very keen to attract the right people.

Then there is the marriage. This is important because you are locked into a relationship for the period, or the long-term period. There is common law which applies to the relationship, there is the Trade Practices Act that applies – this is very important, because when you are going through the recruitment process and you are chatting with people, and also in the ad, if you say something that is not quite right, then as an employer you can be bound by those representations that have been made. (Normally that ends up with damages being awarded.) There is also the Workplace Relations Act and all the other sorts of things that come out of it, which cement the working relationship between the parties.

I am happy now to try and answer any questions you may have.

Discussion

Question: I am just wondering about the informal nature of much of the employment, particularly of postdocs at low level. I never even had a job interview, and there wasn't an official ad. How does that fit into your picture?

Bradley Beasley: That fits into the invitation-type thing. As I said before, there are recruitment agencies out there today, you have the formal process that you go through, and then there is word of mouth. The invitation to you would have come through discussions that you have had with someone. Someone would have identified you as, 'Here's a person we've got to have on our team,' and university policies and procedures are modified to take that into account. They recognise that that's the way of moving forward, and that's why you would have been made the offer in the first place – I assume. (I could be wrong. You might have had something over someone, and they had to employ you! But I'm sure that's not the case.)

Question: Could you elaborate a bit more on the loan thing that you were talking about? You were talking about providing funding for researchers if they don't have their own funding, saying that you could provide a loan or some sort of a scheme.

Bradley Beasley: No, what I was saying was that there is a recognition that with researchers, because of the nature of their employment being short-term, if they want to go and get a housing loan or something like that from the bank, then they don't look very attractive to the bank because of the nature of the employment. If you've got short-term, fixed-term contracts, the bank sits down and says, 'Well, here's a high risk.'

We recognise that that's the case, so we are looking at whether or not we can just offer continuing employment and then, in the background, you would still continue to have to do your research grants. That administration would be going on in the background but on the surface you would be considered as having ongoing employment. It wouldn't mean that you would pick up the same entitlements as other staff when it came to letting you go, if that was the case – if you couldn't get the research funding. There would be a different set of severance provisions that would apply, and there would be separate types of provisions that would kick in after the period of time that you were there.

If that got off the ground, as I hope it does because I have had some very constructive discussions with other universities on this point, I think it would be a lot healthier for the sector and also for retaining those talented staff.

Graham Farquhar: I wanted to ask you a question which links in with Alan Lawson's talk and I suppose the kinds of outcomes that Bob Williamson would like.

To use the language that Alan used: you would have people on your staff that are 'geeks' in terms of expertise in what has been decided externally, but obviously you are also involved the other way round, in terms of relationships within the university, of changing conditions of employment as far as the employer is concerned. But in terms of the external ones – OH&S and so on – you will often see the problems, and I would be interested to know how information is fed back up the chain. My impression is that OH&S has been an enormous impediment, financially and timewise, in practice in my area. We carry harmless plants in rubbish bins long distances because of some crazy rule.

So how does the feeding back of information work? How do we feed information back so that the laws and things can be made more practical?

Bradley Beasley: At the ANU, what they have is our Occupational Health and Safety Branch. They provide a document to the team that is recruiting staff to make sure that certain things are monitored and to ensure that the workplace is safe for that person to come into. Also, for most staff, particularly if they are going into an occupation which could be high-risk – the mouse house, for argument's sake, where you are dealing with animals all the time and there are all these allergens that people could suffer from – we need to be aware of workplace problems because we don't want to expose an at-risk individual to that environment. It might end up that they have an asthma attack or something and die. It may be a process of, 'Well, if they are going to be working there, we provide them with personal protective equipment,' or something like that.

Unfortunately, the way that we find about it is during an investigation after a breach, as we are at the moment. (I am dealing with that.) There is the chance that the case is bogus, but we have to see what happens and whether or not we get a fine or we get prosecuted. But they are normally the ways that we get feedback in regard to what is going on.

There is also a way that staff can notify us that there is a problem within the workplace, and remedial action can be taken almost immediately in fixing that up. There is normally no expense spared in dealing with that, because of the problems that it may create for the individuals who are working there but also for our students or other occupiers of the institution who may have access to those areas.

Graham Farquhar: What I actually meant was feedback about rules that have been made but are too broad, that are actually causing people to not take them as seriously as they should, because they have been made too broad. So it would be feedback, I guess, to lawmakers and so on.

Bradley Beasley: Within the institution or external to it?

Graham Farquhar: I suppose in this case I was thinking of externally, but maybe that is a discussion we should pursue later.

Bradley Beasley: Well, internally it could result in disciplinary action being taken if they were not complied with. Alternatively, there are submissions that can be made to the Senate. Prior to coming to the ANU I used to write submissions on behalf of the organisations I represented, in relation to laws being introduced that affected the workplace. So when Senate inquiries open up the opportunity to have discussions, you can make submissions about that.

Also, we make submissions through professional bodies such as the Law Society – not necessarily related to Senate inquiries, but at other times when we see that something is coming up where there needs to be changes made. So there are those other avenues available.

Also, politically is a very good one in regard to persuading the government of the day in regard to what is going on. So there is a range of ways of influencing the laws that come into play.

Graham Farquhar: Thanks very much. I am sure we will be calling on you for your expertise in what we send forward as a result of this two-day exercise, to make sure that what we are asking is legal – and sane!

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