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What does “tenure” really mean in Australia?

Brian Leiter

With the bloodbath at ACU, and the dubious reasons given for it, one has to wonder whether having a "tenured appointment" at an Australian university means much or creates any meaningful legal rights or entitlements?  Consider what happened at ACU:   starting in 2019, philosophers were recruited, often from tenured positions around the world, to a new research Institute devoted to "core" analytic philosophy; they were offered the Australian equivalent of tenure; in 2021, a new Vice-Chancellor came on board, the "unreconstructed Hegelian," and two years later their jobs were gone.   Is this what tenure means in Australia:  you have it as long as the Vice-Chancellor appreciates your research?

One ACU philosopher noted on Twitter that the provost of the Australian Catholic University, Meg Stuart, told him "that being sacked from a continuing contract less than a year after moving to the country is normal for universities in Australia, which must remain 'agile.'"  Is this "normal"?  If so, then tenure does not exist in Australia.

Comments from readers knowledgeable about Australian employment law and tenure practices welcome.

 

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21 responses to “What does “tenure” really mean in Australia?”

  1. Dmitri Gallow

    To provide the full quote, which couldn't fit on Twitter: in response to my question about dismissing employees on continuing contacts who just arrived in the country a year prior, Meg Stuart replied:

    "it is the nature of
    higher education and particularly of an institution like ACU that is incredibly so
    dependent on its commonwealth support that we do need to be judicious with the money we spend.
    We also need to be agile in responding to the demands and the priorities of our
    funders, and that includes also, of course, the demands and the priorities of our
    regulator. Other higher education institutions across Australia have also lost staff.
    During COVID, the sector lost 6 % of its staff. ACU actually lost none at that point.
    And we,
    it's within our right, of course, as an institution, as a self-governing, self-accrediting
    institution, to change the models that we use internally in order to meet the demands
    of those who are our funders and regulators,
    but also our own strategic intent. So, I think for many people, many people would
    recognise that universities need to do what they need to do to survive and that this is
    the nature of working in higher education."

    Reply
  2. Steven Hales

    Stuart's remarks are endemic of the "universities are just a business" mentality. I will never cease to be astonished that otherwise smart people seem to think that if an organization has business elements, then it is merely a business and should operate solely by those norms. Is the Catholic Church merely a business? The US Army? The Red Cross?

    Reply
  3. Howard

    This Meg Staurt's language indicates she realizes how weak her case really is. "It is within our right," and then she adds, not too confidently "of course" and then "many people" a vague exaggeration, twice.
    As an outsider her language tells her guilt

    Reply
  4. Anon in Oz (not my real name)

    To put this in a bit more context, we have a colleague who has not even arrived in Australia yet because they only received a visa in July. His position was marked for redundancy in September. Just think about that. No funders or regulators were demanding that ACU cut positions. Nothing interesting happened to finances between then and now. This decision is pure "strategic intent". If you can lose your job that quickly without the the university pleading financial emergency, an offer of continued employment might give you less time to work than the shortest of postdocs.

    I might also note that the spill and fill process being used hits everyone in political science (i.e., regardless of whether you are on the teaching contract or research contract, you'll be spilled and can continue working only if you win the fight to fill a space) it hits none of the philosophers on teaching contracts and all of the philosophers (excepting Dianoia's director) on research contracts. No selection criteria were used to explain who would be spared and who would be hit. No manager was consulted prior to this decision to see who would be best able to do the university's ongoing work. Not a single person has been able to explain this pattern of targets. It would be wonderful if the architects of this plan or someone on the senate could address this, but they have not.

    Reply
  5. Anon in Oz (not my real name)

    A slightly different issue. In discussions with my lawyer, I'd asked whether the university could have decided to spill only people at senior levels and have them compete for jobs at a much lower level. The answer was 'Yes'. It might have been thought that a financial case would need to be made for this proposal to go through, but the university in this instance has made NO financial case because they have not tried to show that these cuts are financially necessary and they have produced no workload agreement that would explain how many members of staff would be needed to do the work that staff would need to do if the cuts were approved. It's not just tenure that might not exist in Australia. Promotion might not exist in Australia.

    (In this instance, we have been given no information about the 4 philosophy positions that the spilled might fill, but I am willing to bet the money that I'll need to live on whilst waiting for a new job if I stay in the profession that some of us would lose seniority if we defeated our younger colleagues in the contest for continued employment. Survivors are immune to being spilled in the next round of spill and fill, but I suppose that if our administrators are reading this blog, it might have occurred to them that they could try to pull this trick every few years or so and essentially make every ongoing position entry level.)

    Reply
  6. Also anon (for good legal reasons) in Oz

    Let me be blunt. There is no such thing as tenure in Australia. The term "tenure" isn't used here, and we don't have tenure by any other name either.

    The norm here is what is called a "continuing contract", i.e., a contract with no end date, subject to "confirmation", which comes within a period of "probation" of (typically) three years. The expectation, however, is that it will come, as long as you do your job competently, and normally you will get it within a year or two (sooner than specified in your contract), essentially as soon as you've proven yourself not to be incompetent at your job. The application process is very simple and quick, with no external evaluations and no need to provide letters to support your case. So, in this respect, what we have is more generous than the US system of tenure. On the other hand, what you get once your appointment is confirmed is not so great. Having a confirmed continuing appointment — which I and nearly all of my colleagues have — does make it extremely difficult to fire you. However, it provides no protection at all against redundancy. If the university makes your job (your "role", in legalese) redundant, then that's the end of it. You're entitled to a notice period and severance pay, but you're gone for sure. Of course here too elementary protections apply: you can't be targeted for redundancy on the basis of your membership in a protected category (such as your nationality), but essentially anything else goes. This was one of the first things I checked with my lawyer, and he confirmed it. I specifically asked him whether the university could legally target everyone at a certain level of seniority (say, anyone above the level of a Junior Research Fellow) at a certain administrative unit (say, Dianoia) or in a certain discipline (say, philosophy) for redundancy, and he said they could — there would be no legal recourse since these are not protected categories. So, this confirms what "Anon in Oz (not my real name)" said.

    "Anon in Oz (not my real name)" also speculates that promotion might not exist in Australia (if your employer so decides), and this in fact the case — another thing I checked with my lawyer. I asked him whether it would be legal for a university to adopt a promotion policy that, de facto, made it impossible for research-only staff to be promoted (this is something that ACU in fact did earlier this year). My lawyer's reply was that it was, and they wouldn't even have to be so coy about it; they could adopt an explicit policy of (for example) not promoting any philosophers with research-only contracts, since neither is a protected category.

    Reply
  7. Anon in Oz (not my real name)

    Dear other Anon,

    I guess it's good that I wasn't wildly off base, but awful that I wasn't wildly off base. (Admission–I find value and goodness quite weird and don't pretend to understand it, but you get the idea.)

    One issue that I was curious about is the role that a probationary period might play. My understanding was that there was originally a vision in which people at Dianoia were appointed on a five year probationary period. Maybe that was changed, but does being on a probationary period change anything? (I'm guessing 'No' because the answer always appears to be that.) Relatedly, how does correlation work here? I've read some online guidance suggesting that some approaches to spill and fill are ill-advised because getting rid of the senior people (not protected) correlates with getting rid of people of a certain age (protected). I'm not sure if the changes planned hit some protected group in the right way (visa status, age, etc.) but thought it was an interesting question to address.

    Reply
  8. Steve Finlay

    Australia needs to get its act together. The country is basically free-riding on the international system of academic norms. Once the total lack of legal protections becomes widely known (as it hopefully now is) I can't imagine any rational academic with options choosing to migrate to Australia for a job. WARNING: DON'T RISK IT! My overall impression is that in Australia, the law exists to protect corporations from their employees and customers. I've also only just emerged from a 2.5 year legal nightmare over my home purchase, because I wrongly assumed (based on US experience) that sellers, agents, and inspectors were under some legal requirement to be honest and forthcoming about known defects. In Australia, sadly, it's always Buyer Beware.

    Reply
  9. Mark Glouberman

    Dianoia Paranoia

    From the 'Thematic Review'

    'The importance of expert advice and efficient systems to support future growth cannot be understated.'

    Or does 'over' become 'under' down under?

    Reply
  10. David Wallace

    Just to follow up Steve Finlay's point: in the UK it's been clear for a while that job security for 'permanent' academic staff is based on reputational rather than legal factors. There's no real legal bar to a UK university deciding to, e.g., reduce the size of its philosophy department by 50% through compulsory redundancies, but no department that wants to be internationally competitive will do so, because the norm (partly coming from tradition, mostly coming from the US's influence) is that academic jobs are permanent after probation. So any UK university that started using compulsory redundancies would not be able to competitively recruit and retain staff, at least at the senior level. The fiasco at KCL 13 years ago (which veterans of Brian's blog may recall) is the exception that proves the rule: KCL did try to make some senior philosophers redundant, but backed off in the face of a international firestorm of bad publicity. Ultimately, KCL does value its international reputation, does want to recruit and retain staff, and recognized its mistake.

    My guess (subject to correction by those more informed) is that places like ANU or Sydney would feel similarly constrained by reputational issues. ACU clearly does not, though, and you could see why people might be wary of any Australian institution given this precedent. (Certainly I would.)

    Reply
  11. Also anon (for good legal reasons) in Oz

    "does being on a probationary period change anything?" It makes it easier and cheaper for your employer to get rid of you (they don't have to resort to redundancy). I never looked into the details because it doesn't pertain to me. You should check with a lawyer.

    Reply
  12. Ted Nannicelli

    As others have said, there is no tenure in Australia. Readers might be interested to know that at The University of Queensland, the enterprise bargaining agreement (which I believe is fairly standard across the sector on matters of termination) specifies that the University can terminate the employment of continuing academics with six months' notice. Professor Wallace is right that few Australian universities exercise this right because of reputational risk… but it is their right nonetheless. Thus, people like Professor Stuart can make such outrageous, tone-deaf comments without fear of any serious legal challenge.

    Reply
  13. Anon (in Oz)

    I can appreciate the lack of employment stability in Australian academia, having been lured here to a position on a two-year contract that was not renewed due to 'COVID fears' around the budget (which, btw, worked out fine for my former institution). I agree with some of my fellow 'Aussies' (still adapting to the new identity), that academics should beware taking up positions here. Job uncertainty is endemic across the sector, and is (as ACU manifestly shows!) entirely insensitive to either experience or reputational status within the field. We should, of course, all feel terrible for those *unethically* lured to take up posts at the Institute, only to be cruelly gutted; but, spare a thought for those PhD students who were similarly lured into applying for and accepting positions at ACU in Melbourne. These people had to jump through multiple administrative hoops (institutional, governmental, etc., during COVID, no less), only to have their supervisors ripped away, with nonsense/vague assurances that they will be 'taken care of'. I can assure you, they will *not* be taken care of…. Rotten example of a state of affairs that is more broadly rotten in what the 'locals' call 'The Lucky Land'. Not so bloody lucky for all!

    Reply
  14. Lab Monkey

    In the UK, if nowhere else, it is harder to fire philosophers than chemists. Several universities in the UK closed their chemistry departments and fired everyone there. Including KCL, who later changed their mind and are now going through a long, difficult and expensive process of rebuilding the subject.

    Reply
  15. Matt Lister

    "the enterprise bargaining agreement (which I believe is fairly standard across the sector on matters of termination) specifies that the University can terminate the employment of continuing academics with six months' notice."

    This isn't exactly wrong, but is over-simplified. A more full account is something like this: In Australia, for a termination to be fully legal, it must be for cause. This would often be related to one's capability or performance in one's job. The rules here are much more protective than those for "at will" employment in the US, but at least somewhat less protective than tenure for an academic is in the US. If there is not good cause, and if the person dismissed is not given an opportunity to improve, and if certain other reqirements are not met, then the dismissal may be found to be an "unfair dismissal" by the fair work commission. If this is found, then the dismissed person can ask for reinstatement or compensation. Officially reinstatement is the "preferred" remedy, but in practice it's given only in a relatively small minority of cases. Much more common is compensation, but this is capped at 23 weeks at the employees' current pay or 1/2 of the "high income threshold" – about $82,000 AU right now (so, about $53K US.) As you'll notice, this is equivalent to 6 months, or the "notice" period above. This means that, most often, the dismissed employee can at most be paid for their "notice" period. (The notice period is shorter for most employees, and has to be paid out except in certain cases of very bad behavior.) In practice, then, while it's in principle possible to get reinstatement, you'd first have to show that you were unfairly dismissed, and then be lucky enough to get this remedy. It's not impossible, but not likely, either. One good aspect of Australian law here is that "constructive dismissal" is covered much more explicitly than it is, as far as I understand, in the US.

    There are rules related to redundency, too, and they can over-lap with the above if there is not a "genuine redundency", but it hasn't been hard for universities to meet the standards of a "genuine redundency".

    (There are some other protections, too – the "general protections", that provide protection against not just dismissal but "injuring an employee in their employment" when this is done on the basis of various protected traits. These are somewhat similar to anti-discrimination grounds in the US, but they cover more things.)

    Reply
  16. Anon @ Sydney

    Sydney went through an institution-wide redundancy round in 2012 when it was headed by Michael Spence, now of UCL. It did not use redundancy to get rid of a discrete department; it simply placed all academics who had not published a certain amount of research in the previous three years on an at-risk list (some exemptions existed for early career scholars, those who had been on certain types of leave, etc).

    People were then rescued from that list by faculty star chambers if they were lucky, and some were offered teaching-focussed roles rather than redundancy. But over 100 academic staff were still made redundant. As I remember, it was quite big news in the academy at the time, but seems to have been almost forgotten now.

    Reply
  17. Charles Pigden

    In New Zealand the situation wrt to ‘tenure’ is similar to that in Australia.
    1) Once you are hired as a junior staff member there is often a probationary period before you are ‘confirmed’ (though this is sometimes skipped, especially for senior appointments). The bar for confirmation is relatively low (basically performing with a reasonable degree of competence for three or four years). You don’t usually have to jump through the demanding hoops necessary to get tenure in the US. If you don’t stuff up in a truly spectacular manner, confirmation gives you a job for life *so long as that job continues to exist*. It is quite hard to fire you *as an individual* except for egregious misconduct. (Though of course, a lack-lustre but competent academic is not likely to get promoted very far.) This is partly because of specific provisions in collective contracts and partly because *in this respect* New Zealand labour laws are quite good at protecting the jobs of individual employees of all sorts. (My son-in-law runs a small business and found it quite difficult to sack an employee who had actually assaulted a fellow-worker.) Confirmation makes you fairly safe in your job so long as that job itself is safe.
    2) BUT – and this is a very big ‘but’ – it is relatively easy to make whole *groups* of employees redundant. An academic department can be subjected to ‘management of change’ which means in effect that it is disestablished, the employees being made redundant en masse, with the proviso some people *may* be reemployed with similar salaries in the radically downsized academic unit. (Though not if there are no jobs in that unit to reapply to.) People are not fired from their jobs – rather the jobs themselves are abolished. There is a consultation process that has to be gone through but typically it is fairly short and often pretty perfunctory. (Not always however – to do my own institution justice, at least some such consultations involving ‘management of change’ have made a bad thing, though still bad, at least a *little* better. ) This is happening here at the University of Otago where staff cuts of up to 10% are currently under way owing to a financial crisis largely (though not entirely) due to government underfunding. (Government funding has not kept pace with inflation leading to massive cuts in real terms.) Philosophy, you will be pleased to hear, has (thus far) gotten off without ‘management of change’ but this is because one senior staff member took voluntary redundancy and because the department as a whole has bucked the downward trend in enrolments. Other ‘academic units’ have not been so lucky. Some have been completely abolished or cut by over 50%.
    3) However I don’t think that in the main the cuts are ideologically driven as perhaps they have been elsewhere. The underfunding crisis is real, though there may be questions about the university’s overall strategy for dealing with it, and it is the lack of EFTS (Effective Full-time Students) as compared with FTES (Full-time Equivalent staff) that puts academic units in the cross-hairs.
    3) There is a further problem worth remarking. The right to strike on the part of the Tertiary Education Union is strictly limited. We can strike for higher pay during a period of wage-bargaining but that is about it. We can’t strike to protest against managerial decisions and we can’t strike either to protest against redundancies. It is not just in the USA that the neoliberal revolution has drastically reduced workers’ rights.

    Final point. Although we are not likely to be taking on many new recruits in the near future, should an aspiring young philosopher from elsewhere consider a job in New Zealand? Answer: a qualified ‘yes’. *So long as Philosophy is in demand* at your prospective institution and *so long as the underfunding crisis is resolved* your job is fairly safe. (There is a problem about managerialism and weak to non-existent faculty government but these are problems that are common elsewhere). The relative immunity to misfortune that Philosophy at Otago has experienced thus far is due in a large part (though how large it is difficult to tell) to the runaway success of our PPE program.

    Reply
  18. Dirk Baltzly

    It is perhaps useful to place the events at ACU in the context of Australian industrial relations law generally. In the 30 years since I moved here, workplace conditions and the union movement have been under sustained attack Liberal-National Party federal govts. Craven Labor govts in 2007-10 and 2022-present have largely failed to roll back these attacks, removing only the most egregious parts of the LNP's 2005 WorkChoices Act. So the job security that academics have — or fail to have — mirrors the increasingly precarious employment conditions of Australian workers generally. Academics are not a special "protected species" and while I am encouraged by the outpouring of support for my colleagues at ACU, I suspect that in the end this will come down to usual protracted trench lawfare, with the National Tertiary Education Union arguing that ACU hasn't had a sufficiently lengthy or meaningful consultation period, or hasn't offered redeployment, or any of the other conditions they can find in the Enterprise Bargaining agreement they negotiated with ACU management that last time around. My bet is that it is likely to wind up in front of the Fair Work Commission (a system of tribunals that adjudicate industrial relations disputes). If ACU is taking heat in the national press and you good folk are making it clear that they're wrecking their international reputation AND if they are faced with the prospect of grueling trench lawfare with the union, they may re-think this.

    What lesson should international academics draw from this? Well, you can say that there is nothing tantamount to American-style tenure in Australia. But you can also say that, even in its currently degraded form, Australian workplace law offers more protections to ALL kinds of workers than do workplace laws in the USA. Of course, rational self-interest leads academics to care quite a lot about conditions like tenure (and academic freedom) that protect OUR job security. But I hope you will agree that Covid showed that the role we play in maintaining a healthy polity is by no means unique. A healthy polity needs office cleaners, nurses and truck drivers too. If we deserve job security, so do they. The ruthless bastardry of ACU management — together with their 'born to rule attitude and their obscene salaries — ought to make it clear that we're all workers and we should think that way. Join your union. Link arms with unionists in other workplaces. None of us is so talented or so clever that we're not disposable. Academics' rights are workers' rights.

    Reply
  19. Simon Ives

    My undergrad was in Philosophy (in Australia) before I went down the business pathway for graduate programs. I work in HR, including IR, in Australia and internationally. I do not work in HR in the University sector.

    Australia doesn't have a phenomenon akin to tenure in the USA. For permanent employees (most of those caught up in this issue at the ACU) there are a variety of employment protections available. For federal-system employers (such as the ACU) employees do not have any unfair dismissal protections during the minimum employment period of six months (unless the employer employees fewer than 15 employees). For employees who have worked for six months or more, this protection is available, however is only enlivened once termination of employment has taken place (see – https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal). There are also some exemptions, such as the high-income threshold, to consider as well.

    Federal-system employees, regardless of length of service, are protected against unlawful termination and are also covered by the "general protections". Unlawful termination is when an employer ends a person’s employment and the reason is, or includes a reason that is, prohibited by the Fair Work Act. General Protections protect most employees from harmful (adverse) action, coercion, undue influence or pressure, and misrepresentation where they affect workplace rights (see – https://www.fwc.gov.au/job-loss-or-dismissal/dismissal-under-general-protections/about-general-protections and – https://www.fwc.gov.au/job-loss-or-dismissal/unlawful-termination). This one is a good overview of Australian federal-system workplace rights (https://www.fairwork.gov.au/employment-conditions/national-employment-standards/fair-work-information-statement).

    Lastly, there is redundancy, the process that the ACU is pursuing (see – https://www.fairwork.gov.au/ending-employment/redundancy). Redundancy requires consultation with impacted employees and their Unions. Consultation needs to be genuine and must consider employees ideas or suggestions about the changes. Generally, an employee would be unsuccessful with an unfair dismissal application after a redundancy outcome, unless the redundancy process was manifestly poor. However, depending upon the employee's contract, enterprise agreement (if there is one), and modern award (if they are covered) then both unlawful termination and general protections could be enlivened. For example, termination could be deemed unlawful if the redundancy consultation was not genuine, or general protections could become relevant if the employees made redundant possessed an attribute that's protected (e.g. parents were made redundant whilst child-free employees remained employed).

    The Union movement in Australia is pretty weak, but it's worth joining and accessing whatever supports can be offered. Even if you're an IR expert, it's time consuming, and often costly, when you're up against an IR process.

    Reply
  20. Anon in Oz (not my real name)

    I found Simon's comments v helpful. I'm interested in this more general question, 'Is there tenure in such and such a place?' I wonder what the core or essential characteristics of tenure might be. Here's a hypothetical case.

    A merry band of philosophers is recruited to join some institute, program, or department at a university. There is another group of philosophers at that university. They have somewhat different responsibilities as the first group does research and the supervision of PhD students while the other has a more 'balanced' set of responsibilities. The university claims initially that times are tough but eventually starts saying that they will close the institute and all the positions occupied by philosophers at that institute will be made redundant. The others can remain in their position and continue on.

    Without a financial emergency cited, IF the people in the institute had tenure, would they have a complaint against the university? I can't tell. The AAUP (linked below) say that a tenured person can lose a position (without losing it for cause) if either there is a financial emergency (not relevant here because they are already hinting at plans to recruit in business and law (Ha! Probably won't recruit readers of this blog!) OR discontinuance of program or department for educational reasons. It's that second one that interests me. Put this merry band of philosophers in the US and give each of them tenure and matching AAUP sweatshirts. The administration can argue that the institution isn't doing much for the educational mission of the university, so what recourse does this group have? I'm genuinely curious. They might say that the ACU case is different to this one because in the American case, "The decision to discontinue formally a program or department of instruction will be based essentially upon educational considerations, as determined primarily by the faculty as a whole or an appropriate committee thereof". Okay, so that hasn't happened at ACU, but it's not as if we can just say that being tenured means you cannot be made redundant by virtue of being in a program that is being targeted for elimination without an economic need.

    I'd genuinely like to know whether hypothetically being tenured protects people from being made redundant in the way that ACU is apparently planning to do. I quite liked Mike Otsuka's piece in Medium discussing tenure in the UK, but it's left me wondering whether tenure has the powers that people might assume it to have in the US and how we decide whether some country has something functionally equivalent to tenure or not.

    https://www.aaup.org/report/recommended-institutional-regulations-academic-freedom-and-tenure

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  21. Australian Catholic University is hiring–is it worth considering? – Leiter Reports

    […] heard any scuttlebutt.” I have no special information, but I can report that the same vice-chancellor who destroyed the Dianoia Institute is still running the university. So caveat emptor! Comments are open for those who may have more […]

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