Universities unlikely to be prosecuted under Victorian wage theft laws

Written by Selina Zhang

This piece originally appeared online on 21 February 2023.

Although Victoria’s first criminal case of wage theft is set to be heard in February, experts say tertiary institutions are unlikely to be criminally prosecuted under the state’s recently legislated Wage Theft Act.

This comes amid the University of Melbourne’s record $22 million repayment to casual workers, and fresh allegations of wage theft made against Deakin University last November.

Professor Andrew Stewart, from the University of Adelaide Law School, says it will be much harder for larger organisations like universities to be held criminally liable under the Act.

This is firstly because prosecutors need to be able to identify specific individuals who intentionally enforced, or were at least aware of, wage theft practices.

But what Stewart calls the “diffusion of managerial authority, responsibility and knowledge” across universities means that numerous departments all have different levels of oversight in the payment of staff.

“This is not to say that it’s impossible to establish the appropriate level of knowledge,” he explained.

“It’s just that it’s going to be quite a complex task ... can it be established that [wage theft] is a deliberate, deliberate practice? ... As soon as you talk about a bureaucracy, particularly one as convoluted and inefficient as you find at a university, that’s where it becomes hard for a regulator to be able to make out the necessary intent.”

Unions and staff contend that universities have nonetheless broken a contractual obligation to their workers, by failing to pay the proper wages owed under the annual Enterprise Agreement (EA).

“All employers are under an obligation to be capable of paying their employees correctly before entering into an employment relationship ... There can be no excuse for failing to pay their employees correctly,” the National Tertiary Education Union (NTEU) stated in its submission to the 2020 Senate Inquiry.

“Whether you call a failure to abide by a contractual obligation criminal, I cannot say, but I am sure it is a decided wrong of some kind, negligence at best,” said Dr Kerstin Knight, a casual tutor at the University of Melbourne.

But even in cases where necessary intent can be established, inconsistencies between state and federal legislation present another hurdle before any criminal charges can be laid.

The Commonwealth does not yet offer any criminal penalties for wage theft, with Victoria and Queensland the only states to have criminalised the practice so far.

“It’s inconsistent with the federal Fair Work Act for state law to impose a sanction which the federal law does not itself provide,” said Stewart.

“[So] it doesn’t seem likely that we’re going to see a lot of prosecutions brought against larger organisations, given the difficulties of establishing the necessary intent and the likelihood of a constitutional challenge,” he concluded.

Future compliance with payment of casuals

While universities may avoid facing criminal liability under Victoria’s wage theft laws, Professor Stewart believes hefty civil penalties will still enforce greater compliance going forward.

“A combination of the Fair Work Ombudsman, the NTEU, the threat of court action ... There is no question in my mind that we have seen [civil consequences] having an impact,” he said.

Following successive wage theft scandals over the past few years, the University of Melbourne has indicated plans to decasualise its workforce, and discuss improvements to the EA with staff and unions.

“We are progressing work to reduce our unsustainable reliance on casual employment... And to ensure our employment practices are fully compliant,” said a University spokesperson.

The University has not provided any timeline or targets for decasualisation, but stated it would improve auditing processes and implement a new payroll system in its wage remediation program update.

In spite of efforts to improve compliance, Professor Stewart suggests cases of wage theft are likely to continue, due to chronic underfunding and understaffing of universities.

“The insistence by many universities of putting profits ahead of their current staff or students has almost inevitably created a climate in which it will be more likely that you will see some breaches in relation to payment practices,” he said.

For casual staff like Dr Knight, the University’s remediation programs and promises of greater compliance provide little reassurance for future payments.

“In my own case, there have been errors in calculating correct renumeration or work-loads in almost all semesters in which I’ve worked,” she said. “I don’t really want to be in a position to have to double-check everything, it feels awful ... But if you don’t query, you end up exploited for your trust.”

Who’s Who In The Stupol Zoo?

NUS NatCon ‘22: Explained

With a federal election, state election, and the first in-person University of Melbourne Student Union (UMSU) elections in two years done and gone by November, you could be forgiven for thinking that the rest of 2022 would be comparatively politically uneventful.

You would be wrong. Because for a certain breed of politician—the student politician—the National Conference of the National Union of Students (NUS) is the most important event of the calendar year, bar none. Here at Farrago, we don’t quite understand why.

The NUS is the peak representative body for all tertiary students in Australia. For a hefty fee, student unions can choose to affiliate to the NUS and use their combined resources to lobby governments, protest, and organise coordinated national campaigns. At least, that’s the idea.

In practice, the NUS has a mixed track record as a representitive and activist organisation, thanks in part to its governance structure—specifically, its National Conference, ubiquitously known as ‘NatCon’. This is where elected delegates from each affiliated union debate and set the NUS’ policy direction for the next year, and compete with each other for a number of coveted office bearer positions, almost always along strict factional lines.

The number and voting power of delegates from each union depends on the number of enrolled students at their university. As one of the largest universities with only a single student union, the University of Melbourne’s delegates are particularly important at the conference, holding the most votes.

Delegates vote by yelling out the name of their faction, and “up” or “down” depending on if they want the motion to pass or fail. If this seems to you like an odd way to run a million-dollar union, you’re not alone.

Just which factional names can you expect to hear shouted across conference floor? In past years smaller factions like the Grassroots Independents (‘Grindies’) and the Australian Liberal Students’ Federation have had a presence, but this year was dominated by three groups, each with a counterpart in UMSU:

Student Unity (Labor Right, the largest faction), who run under Community for UMSU on campus.

National Labor Students (Labor Left, the second largest), who usually run under Stand Up! on campus.

Socialist Alternative (revolutionary socialists, specifically of the Cliffite tendency), who run under Left Action on campus.

We could tell you about the policies, issues, and debates that characterised this year’s conference. We could also tell you about the chaos, abuse, and the fighting—verbal and otherwise. But we really don’t want to relive all of that, so instead we’ve invited representatives from each of the above factions to do it for us.

Josh Davis ran unsuccesfully for NUS Delegate in 2021. He is not aligned with any national-level political factions. Joel Duggan is too personally fulfilled to be involved in student politics.

From The Conference Floor

Luv Golecha, Student Unity

We have all heard some crazy stories about what happens on the conference floor at NatCon, and I was extremely excited to experience it for the first time. Seeing politically ambitious students from across Australia who believe that the NUS is the biggest and best platform for students to raise issues that matter to them and should be heard by the government felt empowering.

From boarding the bus at Trades Hall to reaching Deakin’s Waurn Ponds campus and kickstarting the first day of the conference, I experienced a range of emotions almost as turbulent as the chaotic weather we observed on the drive down.

We spent hours poring over a 250-page long document of proposed motions and action plans, all put up by students across every department; from Indigenous to Queer, International and many more. Discussing and debating different ideas and ideologies gave me a better understanding and perspective on a lot of topics and concerns amongst the student body.

Across the 4 days, we had some wholesome moments, some logical and illogical discussions as well as a lot of heated debates. I did get a chance to be on the BizComm table—I mean the SnackComm table! The first days on BizComm were like an action movie, everyone fighting over every piece of paper! Unfortunately, we didn’t get to see someone eat any of the motions.

NatCon was a memorable experience, from speaking on motions, to being on BizComm, to travelling and interacting with everyone—big shoutout to Deakin and the NUS for the amazing accommodations and food across the 4 days of conference.

Luv Golecha attended NatCon as an accredited observer, and is a General Representative on UMSU Students’ Council.

When You’re So Left, You’re Right

Evelyn Thompson, National Labor Students

I spent four days in a room with hundreds of students cosplaying as important and influential people. These were four of the most emotionally draining days of my life, where I sat alongside my comrades in the National Labor Students (NLS), mentally preparing for perpetual debates with Socialist Alternative (SAlt), and occasionally Student Unity. After being followed through courtyards by SAlt and screamed at for hours on end about how the NLS is no different from Student Unity, I have learnt a critical lesson that I will bring with me throughout the entirety of my StuPol career:

I have never been more secure in myself as a person, and as a member of the NLS.

You may be thinking, “how is it even possible to have your self-confidence whittled down to the bone by SAlt, and arise with any sense of security?” Well, brethren, here lies the very conceit of my piece. Textbook-definition harassment won’t get you far.

Entering NatCon, vapes in hand, NLS was prepared for countless debates regarding the University Accords, the Voice to Parliament, and the Australian Labor Party. The latter, I must add, was heavily criticised by the NLS. Climate change, refugee policy, protest laws, the Religious Discrimination Bill; we spoke out multiple times against the party, as the primary purpose of Labor Left is to make the party more progressive. This cannot be accomplished if we champion the ALP blindly and without nuance (sorry Student Unity, but not really). This was not enough for SAlt, who, like a broken record, continued to demand that we condemn the ALP. Which we continued to do. And they continued to yell. And we continued to regret ever getting involved in student politics, because seriously, what the fuck is this?

NLS spoke on many occasions about reforming SASH policy, unionising TAFEs, the importance of free education, and improving students’ welfare — including service provision! Yet, we were still being criticised for being conservative bootlickers. I can’t even begin to analyse the mental gymnastics there. After only a couple of hours of this abuse, however, I started to notice an interesting little aspect of our supposedly more left-wing counterparts. They are so far left that they’re right.

Continuing to prove the horseshoe theory correct, SAlt misgendered NLS speakers and refused to state their pronouns at the beginning of their speeches despite being asked multiple times to do so. They continued to use “LGBTI” instead of the proper initialism “LGBTQI+” despite, once again, being told multiple times that queer and asexual people exist. Siding with the Grassroots Independents, they also voted down an NLS motion emphasising the importance of safe spaces for autonomous groups, especially at universities. That should not have been a contentious topic. Despite condemning Liberal Party figures for speaking out against the Voice to Parliament, SAlt and the Grindies further voted down motions in support of it. How the tables have turned. How the horseshoe curves around.

All grievances aside, when not being abused, NLS are actually able to work together with SAlt to achieve something impactful. SAlt’s proposal for a National Day of Action was gladly supported by NLS during the (only) pleasant lunchtime we had, where we all sat down and worked through different methods of executing this protest. One-on-one, the Trots can actually be lovely. They can be effective. They can be normal, cordial people. We can vote on progressive motions together, and shut down Student Unity when they say shit like “HECS is best,” when we know that free and universal education is far better.

SAlt and NLS share a lot of similar values, and at the end of the day, we would love to be able to work together and get shit done. As long as that shit is accessible, and our discourse is productive.

It’s a lot easier to make change when you aren’t straight-up harassing people.

People were punched, curries were spilt, vapes were devoured, and I am so glad to be a part of NLS.

Evelyn Thompson attended NatCon as an accredited observer, and is a General Representative on UMSU Students’ Council

Why We Need Activist Student Unions

Bella Beiraghi and James Gallagher, Socialist Alternative

Socialist Alternative is Australia’s largest revolutionary socialist organisation, with clubs on all the major campuses and a presence in national student politics. We think capitalism is a rotten system that is to blame for every form of oppression, exploitation and injustice in the world. We currently hold the UMSU Environment Office, and we’re one of the major factions in the National Union of Students, holding the Education and LGBTI Offices.

We attend the yearly NUS National Conference to put forward our arguments for student unionism. This year, Socialist Alternative made two key arguments. First, the new Albanese Labor Government is no friend to students, workers or the environment. Second, the NUS needs an activist orientation to rebuild the union as a body that fights for students.

Our first overarching argument was that the NUS should oppose the federal Labor government. After eight months in government, Labor has failed to address the cost of living crisis, climate change, and the dire state of higher education. Much was made of the Albanese government’s commitment to a 43% reduction in emissions by 2030. However, this pales in comparison to the 75% reduction advised by the Climate Council to avoid catastrophic warming. Meanwhile, the government is pushing ahead with over 100 new fossil fuel projects.

The story is the same when it comes to Labor’s position on student and worker issues. Almost nothing has been done to ameliorate the rising cost of living, with Treasurer Jim Chalmers admitting that real wages will continue going backwards for at least another year, and welfare rates will remain below the poverty line, whilst the government maintains its commitment to the Stage Three tax cuts for the ultra-wealthy.

When it comes to education, Labor has done nothing to overturn the Liberals’ 2020 Job Ready Graduates bill or reverse years of funding cuts and sackings.

We think student unions should be activist organisations dedicated to campaigning for left-wing issues. Student unions control large amounts of students’ money, and have a platform to connect with students and broader society. These resources should be used to involve as many students as possible in activist campaigns.

At the University of Melbourne, we’ve successfully argued for UMSU to organise climate strikes and refugee demonstrations, oppose the far right on campus, and to take a left-wing position in support of Palestine.

The NUS has the potential to play a similar role on a national scale. However, as an organisation currently dominated by careerist Labor students, NUS is instead used for student politicians to collect a paycheck and network behind closed doors. But the NUS still has the ability to reach and mobilise huge numbers of students in united national campaigns; when it does this, it can hold real social power.

In 2014, when the Abbott Government set about defunding and deregulating higher education, it was the Socialist Alternative NUS Education Officer that successfully argued for a mass activist campaign against Abbott’s budget. The political climate created by this movement meant that fee deregulation was never introduced by Abbott – a huge win for students that would not have happened without Socialist Alternative implementing its strategy through the NUS.

The Labor factions, both NLS and Unity, have worked in tandem to implement a moderate, do-nothing strategy in the NUS. They have consistently argued that the way to change things for students is by lobbying the federal government and millionaire Vice-Chancellors, and campaigning to get Labor elected despite their criminal track record. They look to power in the boardrooms; we look to it on the streets. They want to sit down with the university bosses; we want to build a student movement to fight against them.

The main strategic argument put forward by the Labor factions at NatCon was for the NUS to join the upcoming Australian Universities Accord, Labor’s plan to bring Vice-Chancellors, governments, staff, and students together to “reshape” higher education. They argued that the Universities Accord provides a ‘historic opportunity’ for students to get a seat at the bargaining table.

Socialist Alternative argued against this. The government and Vice Chancellors work together to maintain profits at the expense of students and staff. This has resulted in universities boasting megaprofits while students are hit with higher fees, course cuts and mergers, and staff face widespread casualisation and sackings.

NLS often presents a “two-pronged” approach to student unionism. One being lobbying, the other activism. “You can do both”, they say. In reality, this promotes the illusion that students have a common interest with the VC’s and governments, while actively demobilising the student body. That these strategies are counterposed was most clearly illustrated at NatCon when Labor Left and Right alike moved to gag the 2023 Education Officer from publicly opposing the Higher Education Accords.

The only way we can win real action on climate change is by rebuilding a fighting climate justice movement. That’s why Socialist Alternative is organising a National Day of Action (NDA) for the environment on March 17. We think the NUS should play a key role in this, mobilising young people to oppose every new fossil fuel project and demand that not one cent be given to the fossil fuel industry. At UMSU, this will be a key focus of the Environment Department in Semester 1.

For years Socialist Alternative has been the only faction arguing for the NUS to take a left-wing, activist strategy. After being locked out of Office Bearer positions for two years, it’s a real step forward that in 2023 Socialist Alternative will hold the Education and LGBTQIA+ offices. We’ll be using these positions to run activist campaigns and call protests, and we encourage all students to get involved in the fight for climate and social justice.

Bella Beiraghi and James Gallagher attended NatCon as accreddited observers. Bella Beiraghi is a General Representative on UMSU Students’ Council, and James Gallagher is one of the 2023 UMSU Environment Officers.