As part of ongoing discussions about your new contracts, the following questions put by HSU members have been responded to by NextSense management (in italics):
1. What is the purpose of these new contracts?
“Following any significant change in the industrial framework applicable to an organisation, it is not only reasonable, but critical, for the organisation to ensure the employment terms and conditions arising under contract are updated, consistent, current and reflective of the new framework… An enterprise agreement is not a substitute for a contract of employment. Similarly, a contract of employment cannot be used to contract out of any obligations and entitlements that arise under an enterprise agreement.”
For some further clarification as to the purpose of an EA, a contract and a policy:
An Enterprise Agreement outlines the minimum terms and conditions of employment. These can be expressly included in the contract.
A Contract includes the rights and obligations of each party outlined. The terms of contract are enforceable.
A Policy provides the standards expected in the workplace, such as what is accepted and not accepted in the workplace. Policies also provide what procedures that need to be undertaken in the workplace.
2. Some staff are concerned about the vagueness of certain terms of the proposed contract, for example the use of the term “from time to time”.
“The use of this phrase is standard practice and the context in which it is used in the contracts is self-explanatory. If an employee requires clarity with respect to its meaning and how it applies in the context of their obligations set out in employment terms and conditions arising under contract, they are encouraged to obtain independent advice.”
3. Clause 2.5 of the proposed contract states that “NextSense may, by giving you reasonable notice and in consultation with you, require you to be based temporarily or permanently in another location, including interstate”.
“NextSense does not intend to unilaterally make a decision to require an employee to relocate to another location interstate. This would not meet the reasonableness test under contract law principles.”
4. Clause 9.4 (a) and Clause 20.1 about discussing renumeration
“Clause 20.1 does not provide any prohibitions with respect to seeking professional advice about remuneration… The primary purpose of enforcing this requirement under clause 20.1 of the contract is to protect the privacy of employees. Whilst we respect that some employees may have an opinion that they should be able to share information with their peers regarding their employment terms and conditions and pay, this is not an opinion shared by NextSense and many employees with concerns regarding the impact this may have on putting staff in an unreasonable position in the workplace. Many employees value organisations putting in measures to protect personal information and mitigate against workplace conflict, including circumstances where peers may put pressure or have an expectation for peers to disclose their employment arrangements, including pay.”
5. Intellectual Property and Moral Rights clause
“The intellectual property and moral rights clauses are standard clauses in contracts of employment and affirm the position under law in respect of NextSense’s ownership of intellectual property of any work created in connected with employment and a waiver with respect to moral rights… The purpose of this clause is to make clear the position under law, that is, where an employee creates or develops work in connection to their employment, the intellectual property in that work belongs to NextSense. NextSense authorised use of intellectual property, including in connection with any affiliate arrangements with another entity, such as Macquarie University, does not give rise to an employee’s breach of intellectual property under law or in contract. Unauthorised use of intellectual property may be in breach of the employee’s contractual and legal obligations.”
6. Clause 12 – Fitness for Work
“NextSense complies with its obligations arising under federal and state anti-discrimination legislation at all times. In addition, NextSense also complies with its obligations and duties arising under work, health and safety legislation in each state and territory in which it operates… Consistent with legal principles, any direction for an employee to submit to an independent medical assessment will require that direction to meet the test of reasonable and lawful direction of the employer. Whether a direction is lawful and reasonable will be determined on the facts of individual circumstances. It is well established that the actions of the employer in requiring further medical evidence from the employee prior to issuing a direction is a relevant consideration in assessing reasonableness of an employer direction.”
With any outstanding questions, your HSU representatives will be meeting with NextSense again to discuss. NextSense has urged any individual concerns or requests for further clarification to please be directed to People and Culture. If you would like to discuss any of your concerns, please contact your HSU Organiser Emmett Gray on 0499 919 355 or at [E-Mail not displayed].