NTEU Update: Fair Work Australia and the BCF
NTEU advice to members regarding the Behavioural Capability Framework (BCF) and Online Workplanning
On Wednesday 21 March 2012, Vice President Lawler of Fair Work Australia issued an Order under s.418 of the Fair Work Act. That Order applies to all NTEU members employed as academic or professional employees by RMIT University. A copy of the Order is available below.
The most important part of the Order, which came into effect at 5pm on 21 March, is as follows:
4. INDUSTRIAL ACTION TO STOP OR NOT OCCUR
(a) The NTEU must immediately stop organising industrial action against the University (including organising - including by advice or support - industrial action in the form of a ban, restriction or limitation on academic and/or professional staff at the University negotiating their 2012 workplan using the 2012 online Performance Workplan tool) and must not, recommence, engage in or threaten to engage in organising industrial action against the University while this Order is in force.
(b) Each Employee must immediately stop all industrial action that is happening at the time that this Order comes into effect (including refusing to comply with a direction by the University to negotiate a 2012 workplan using the 2012 online Performance Workplan tool), and must not, recommence, engage in or threaten to engage in, industrial action while this Order is in force.
The NTEU has appealed against the decision on which this Order is based, but until and unless an appeal bench of FWA (or a court) overturns the Order, it is legally binding on the NTEU and our members at RMIT.
Therefore, in compliance with the FWA Order, NTEU now withdraws its earlier advice to members that you should not comply with employer directions to complete the Online Performance Workplan so long as it contains the BCF.
If you are directed by RMIT to use the Online Performance Workplan 2012, the Order of FWA makes it clear that you must not refuse to negotiate a 2012 workplan using that online tool, even though it incorporates elements of the BCF. We understand the University has extended its deadline for staff to complete the online form until 5pm on 13 April.
NTEU notes the following comments from VP Lawler’s initial decision:
 It is true that an employee is not free to negotiate the BCF. However, it needs to be recognised that the employee is not asked to agree to the BCF (the acknowledgment tab does not ask this of the employee) and that the employee can negotiate around the extent to which particular items in the BCF have a greater or lesser application in relation to the employee’s particular circumstances. (emphasis added)
 More importantly, the BCF is not the Workplan. It is an aid - a tool - to assist the manager and employee produce a better Workplan.
If this is right, then in negotiating your workplan, you should be free to negotiate the extent to which the BCF “expectations” apply in relation to your job and your circumstances.
Your Rights under the Collective Agreement
Remember that, under the terms of your Union Collective Agreement, the Workplan remains a negotiated document. The Online Workplan form is a way of recording the Workplan you negotiate with your supervisor. You are free to propose additional items, including, for example, your expectations of the University’s behaviour, the levels of staffing and resources that will be provided in your work area to enable you to perform to the expected level, and so on.
If you object to using a Workplan form that includes the BCF:
The NTEU advises members who object to the inclusion of the BCF in their Workplans to record that objection in a note in one of the amendable fields in the Performance Workplan Online – perhaps in one of the performance indicator fields under cascaded objectives (eg. where there is a cascaded objective about not breaching RMIT policies) – and in an email sent to your manager at the time of selecting the “Acknowledge and close objectives phase” option on the Acknowledgements tab.
Feel free to cc or bcc your emails to the NTEU: firstname.lastname@example.org
Such a record of objection might be in the following terms:
I am submitting this on-line workplan in compliance with an Order issued by Fair Work Australia. I do so only because of that Order and because of advice from the NTEU that I should comply with it. The BCF is fundamentally flawed and inappropriate for a University community. I object to its inclusion in my workplan. The “Expectations” listed in that part of the Workplan have not been negotiated or agreed. The decision leading to the FWA Order is under appeal and will be reviewed by a Full Bench of Fair Work Australia. To the extent that any further decision allows me to revoke or amend any elements of this Workplan relating to the BCF, I reserve the right to do so.