the longest period for which a could be other staff, those more senior in years though not TENURE OF Malcolm R. Fisher necessarily in rank or academic experience, enjoy Australian Gmduate Scl,ooi of Management committed to the employment of any individual would University of New South Wales be twenty years - as against the present forty years. the security which tenure gives, there would be little IN THE Furthermore, the same rule could apply whether the need to fear such a change. appointment were to a tutorship, a lectureship or an associate professorship; it is, rather oddly, often Tenure relates to the length of time assuredness of private sector, at least in explicit form. Moreover assumed that, if the proportion of tenured positions My aim in this paper has been to show that, whilst the employment is given to an individual within an those types of opportunities for any given patt­ were reduced, tenure would be retained by the practice of making appointments with tenure un­ enterprise unit. It may convey highly specific com­ ern and quality of skill will draw towards them per­ holders of the higher ranks but, plainly, if tenure does doubtedly has its disadvantages, far more would be mitment, or merely strong intent, perhaps backed sons whose relatively stronger preferences are create a problem, the higher the rank involved, the lost than would be gained by the abandonment or the by precedent. If the employing unit itself is not towards job security rather than higher pay. They greater the problem. drastic reduction of tenured appointments and that assured of continuity with adequate funding cannot have both as that would make that type of strategies are possible, both to provide further beyond the date implied or stated, that in itself job unduly appealing, and a lessening of tenure or a One problem that immediately presents itself with the safeguards against the abuse of tenure and to in­ creates doubts as to the nature of the labour lowering of pay offered in order that the market minimum age suggestion is that 'It would not disperse crease the flexiblility of universit"les by reducing the employment relationship. clear. Thus any attempt by an empioyerto lower the tenured staff proportionately through departments; proportion of tenured appointments, without real previously operating period of tenure will, other there could well be departments with tenured heads threat to universities' capacity to fulfil their time­ In a sense every employee enjoys tenure, differen­ things being equal, tend to lead to a lessening of the and all other members ineligible for tenure whilst honoured role. ces across individuals relate to the length of binding number of would-be applicants unless offsetting other departments had wholly tenured staff. But commitment, or at least to the likely expectation of rises in pay are included in the job package. Not occasional anomalies of this kind should not, in ! certainly do not claim that the specific suggestions length. Tenure is one element entering into job everyone is a marginal worker who would get up practice, present major problems. The important made exhaust the possibilities and are not subject to choice in the eyes of a WOUld-be employee, and one and go if tenure were lessened, or if pay were thing is that the general ethos of the universities is not further argument. I do claim that they indicate the element entering into the content of a job package reduced for given tenure but, given time, more and changed towards authoritarianism and, provided most fruitful approach to the question, especially in offered by a would-be employer. Each party consid­ more would be on the margin of transference, and department heads and a resonable proportion of the light of present-day problems. ers it a desirable attribute at least to some degree, of fresh workers would become much otherwise we would find the average periods of more difficult. tenure extremely short, rather than in practice quite, or very, long. For workers, within limits, longer It is extremely important to be clear about these tenure may be worth seeking at the expense of principles before we address the issue of academic higher pay: for firms the offer of longer tenure tenure. Tenure is by no means confined to the aca­ imposes higher fixity of labour costs for which they demic group, indeed it is the more true of higher will tend to seek offset by offering lower payment for branches of the public service, especially in the services rendered per sub-unit of time. departments of our paymasters, the Treasury and the Reserve Bank. It is also interestingly enough a In a freely competitive market would-be workers of much admired quality of the Japanese manufactur­ given skill will spread themselves across employ­ ing employment scene, the so-called lifetime ment opportunities unt'll there is seen to be no employment system. Yet in certain respects our advantage from rearrangement, and reassignment most well known public companies also tend to of skills. That is to say there is no move by any operate similar arrangements. Banks and insurance individual that can be made which gives longer companies immediately come to mind and firms tenure without sayan offer of that degree of reduc­ such as Shell, CRA, BHP, to name but a few, use the tion in pay, which is considered a balanced offset. same employment patterns at least in the more Of course not all workers operate in such a competi­ senior job categories. tive situation in the short-run, but it is entirely reason­ able to assume that in the longer run they do and What then is peculiar about academic tenure? I hence glaring gaps in the total emoluments from suppose first and foremost we must note the expli­ employment packages will be eliminated save citness of the offer and commitment. Not that it is where there is strong control on entry (and here given without a trial period, an interval which itself queueing costs must be accounted for). varies with the dearth of good candidates, for aca­ This enables us to make two points. Firstly, tenure is demics offer skill that is capable of being periormed a sought after element of a pay package to some within a variety of academic institutions and ·the degree: its length relates not only to the skill on offer employer will be anxious not only to secure, but but also to the viability of an enterprise unit to offer also to hold, an obviously good person. The 'team' such a duration of employment - that is the second element _.- colleague to colleague, colleagueto stu­ pOint. Clearly a Federal Government organisation dent -_. is something valuable, a counterpart to with the fiat of the state is in a stronger position to 'goodwil!' in business. Once the employer confirms make such an offer than is a state or local govern­ that the employee 'IS such a person, the employer is ment and these in turn than enterprises in private likely to be eager to consolidate the employment hands whether single owner, charity or jOint-stock relation speedily and to limit mobility by offering company. tenure, or speedier advancement, or both. Thus tenure is more readily offered to people who have Thus it is not surprising to find longer tenure arran­ passed a competence test with strong recommen­ gements applying in the public sector than in the dation. To want to withdraw tenure from such

10 11 employees is to admit that one's judgement as to one and cannot be discussed without reference to The best scholars may not of course want tenure. create too much tension and detract from the dedi­ likely performance has been wrong - and there is the academic life cycle and even this varies across They can always get a job elsewhere. This argu­ cated academic commitment of able scholars. of course a moral hazard problem in all employ­ job slots both by subject and by teaching require­ ment is partially, but not entirely, true. With a highly ment situations (but one does learn from expe­ ments and in other ways. We all know that the pure integrated university system under government, To my knowledge universities in all countries have rience) - or because the funding of such mathematician normally peaks before thirty years tightening of conditions is likely to be proceeding in an extended system of tenure. Where the market is employment has been wrongly assessed, generally of age but the historian or classic normally does so parallel across all institutions and for some whose played most vigorously, as in the United States, this because of factors beyond control and ones that very much later. Some engage in major work such alternative skill opportunities are low another uni­ is certainly the case and there the period of retire­ could not be foreseen. The introduction of a new as Japanese-English dictionaries which could take versity is the alternative place of work. For others. ment has recently been extended to age 70 - an product or a new technique, or the adverse move­ twenty or more years to complete. Conditions differ CSIRO or private industry, may be a suitable alter­ interesting comment on ageing staff. (Incidentally ment of an exchange rate could be such a direct markedly across subjects, and with the abilities for native though if it was preferred already it would they have correctly seen the economic implications cause in the business arena. Of course mankind those who monitor performance to make fresh have been chosen. of an ageing population as more important than the expects change and chooses job opportunities with detailed assessments at various stages. short-rUn palliative of making fig­ due assessment as to risk. By and large it might be The costs of curtailing tenure without offsetting ures look lower). But there is much across­ expected that a single enterprise within an industry Presumably in earlier times these tenure conditions advantage in the recruitment of future employees university competitive bidding for high quality staff might experience difficulties (or enjoy unexpected were set where they are today by assessments of can be reaL If pursued in Australia to a harsher at all levels and directly such added funding costs expansion) but movements with respect to whole market circumstance, for unions and governments degree than in similar. or better, institutions abroad, will be substantiaL But the system does enable the industries would be less !ikelyto come asa surprise, were less interventionist then. Why is it so obvious good scholars and intellects may be less strongly individual to respond to incentive criteria though and certainly such speedy changes in relation to now that they could have been set wrongly? induced to come, or remain. The end result could perhaps tends to greater neuroses if you have not central government organisations would bethought I believe the real explanation lies elsewhere. be that there is shorter tenure but with lower quality had so many offers within the last month as usual! quite unlikely. For one reason or another, govern­ Governments have made one of their teachers and intellects. I do not believe that there is More especially there is no automatic grant to any ment enterprise and activity tend to concentrate in chosen methods of enterprise activity and have any way out along that path. If rights to tenure are specific individual of increased pay, or offset for the less rapidly innovative areas of output and been happy to encourage undue expansion when more restricted for new entrants (and to restrict inflation. The staff committee, often working within employment and in areas with less participation times were good, and, partly because of the high rights for existing staff would not only bea breach of a formula, makes annual recommendations as to directly in international trade. labour content of education, they have continued to conditions of employment but also spread severe the degree of pay rise that should be offered individ­ sustain their growth at times when trade was mistrust as to the university's reliability as an ual persons within each employment category; Pro­ Even where provisional employment periods before employer - and enormous loss in goodwill extend­ fessor, Associate and Assistant Professor. the possible grant of tenure are restricted to three or depressed also. Now that Keynesian remedies are considered more suspect and the Proposition 13 ing much beyond the issue in question and affect­ This system has good points but is it at present six years it must not be assumed that, once that ing present and possible future staff) then, for the readily adaptable to Australia? Each university here barrier is overcome the job package is a happy one mentality is more widespread, they have tried to introduce cuts in areas where the tax commitment same quality applicants, higher rates of pay (or is funded centrally and not as in the USA from a to any taker for the balance of his or her employ­ other desired amenities) need to be forthcoming. wide variety of State sources and from private ment life. Each job level has its own of pay, is especially high. To some extent they have also chosen to exaggerate the swings of the population Otherwise inevitably the attraction of the calling is endowments. The system does not work well at and even where job tenure conditions are equival­ lowered with dire long-run consequences. The times of financial squeeze, it works best in more ent across levels of skill, the movement from one cycle, or, more charitably, have sometimes mis­ judged it. introduction of more hurdles in the employment stable times when both employer and employee are level to a higher one by promotion has to be actively path may be sensible but these do require a more prepared to live in and operate a system which has sought, often in open competition. Many people These arguments can I believe be substantiated upwardly flexible pay structure. Tenure is after all in high mobility requirements. who have spent their working lives in academia from the experiences of Australia in the seventies, part a way in which the employer has chosen to have had to surmount a series of such barriers of and of Britain in the sixties with its Robbins report economise on labour costs. For given numbers This brings us to another arm of the discussion. tests of performance, Yet again many people who and its aftermath. Education has become increas­ employed under reduced tenure the employer's Australia has comparatively few universities and enjoy tenure in an institution have been only a short ingly politicised. One cost of this, not as yet appar­ paybill will be higher though of course, in some they are grouped in a very limited number of urban time in its employ. of academic staff ent, is likely to be less preferred commitmentforthe cases, so may be the productivity of academic centres. In a high home ownership country mobility relates both to those who have been in the same scholar and innovator to employment in such an labour in employment. If the object is improved by American standards is low, and where the facility institution a long time and those who have been in atmosphere. Not all of these features can be efficiency within the education system, interna­ is less used the costs of securing it tend to be only a short time but have acquired tenurespeedi!y. ascribed to government; the student conflict period tional implications apart, this could have something relatively high. But more directly superannuation The 'wastes' of tenure presumably relate to those has implications for students and staff as well but to commend it. If it is merely to get the total educa­ provisions are determined by States and at present who have been in an institution a long time at only a unfortunately has been used politically by govern­ tional costs of universities down it should have no do not provide for transfer of rights inter-state. To moderate level of appointment. Promoted staff and ments for electoral reasons rather than for deci", appeal whatsoever and may prove counter-produc­ some degree the superannuation arrangements are are often given immediate tenure at their sions on rational criteria. We must hope, and tive. not similar across States letalone within States. Any new levels on appointment but screening commit­ proceed to assume that the Senate's current investi­ revision of tenure for new entrants would seem to tees are in possession of much evidence about gations into tenure are not inspired by such consid­ On efficiency grounds there are probably strong carry with it some encouragement of increased them by that and the multiplying of appoint­ erations. Yet unknowingly they may be. Current arguments for modification of tenure conditions for transferability of arrangements. If anything ment errors is becoming rather unlikely.l tightening of conditions and funding may at some new entrants through longer probationary periods superannuation provisions have been becoming more propitious subsequent electoral opportunity from initial appointment, say to six years, and for more specialised by institution and by State so that Of course reference is sometimes made to ageing introduction of more checkpoints in progres­ lecturers with outdated lecture notes. There is no be followed once more by a reversaL One should there is a clear contradiction in policy aims in the caution against any present moves that are likely to sion within a teaching category, say lecturers. The interlocking areas of tenure and superannuation. doubt that this can be a problem though one might price for this must be more flexibility upwards in the remark, true, with different examples, of employees result in that response for the implications can be severe for people caught in a squeeze who do not graded salary pay structure. How far this should go A further point of substance concerns the levels of in public and private enterprise to a degree also. But is a moot pOint, one best determined in general by pay for any grade of staff in different States which of itself it is not a new problem. For a 'persistent' gain subsequently from the relaxation, to say the very least. the employing bodies themselves in cooperation we illustrate from Professors. Professors receive a problem how is it that more hurdles in the promo­ with staff. One can spend too long in screening staff uniform rate of pay nationwide even though the tion system were not introduced years ago? The - after all universities already have an extremely costs of living including housing differ markedly answer I believe is that the costs were deemed to elaborate committee system which is very demand­ from one State to another. The real pay for those exceed the benefits. The argument is not a simple ing on academic time. The check process can also living in Sydney at the present time is probably at

12 13 least 15% lower than elsewhere and it is doubtful if Footnotes DISCRIMINATION, Davies the extra amenities are fully offsetting. The use of & Cultuml Stlldles in Education There IS another factm that may serve to ease access to University of New England more competitive rates of pay carries with it an tenure. one that has applied since 1975 In the United King­ AND implication that rates of pay for Professors in differ­ dom. and IS presumably a pOint the retiring Vice-Chancellor ent cities will differ not only because of the 'content' of Cambndge was referring to in his recent reported address WOMEN ACADEMICS: (The Australian, October 21, 1981). The Employee Protection of staff but because of location. This has funding Act of 1975 made it very difficult, and extremely costly. for A CASE STUDY OF THE implications for universities and for their claims on enterprises to dismiSS workers after a comparatively short central apportioning bodies for shares of the total period of employment. somewhere about two years. The UNIVERSITY OF costs imposed upon firms rendered labour costs more like grant capital costs and made bankruptcy rather than a phased NEW ENGLAND rundown of enterprise more likely when trade turned persist­ Conclusion ently sour. Universities were by inference, rather than sofar by Tenure is an integral part of any system of employ­ test, to be an industry within the terms of the Act ment. It has long since become part of the accepted package of emoluments in relation to , occu­ The Statutes of Cambridge University provide for two catego­ Introduction than in terms of deliberated motives and recognisa­ pation and job choice. To lower it inevitably involves ries of lecturer grade. The lower, Assistant Lecturer or Dem­ The Federation of Australian University Staff Asso­ bly discriminatory beliefs. They are, nonetheless, onstrator, is lor a maximum term of five years, three years in ciations (FAUSA) has adopted an affirmative action related to a set of understandings about the nature costs both on employer and employee and espe­ the first instance and renewable for a further two. With the cially bears on the attractions of employment for passage 01 the Act the university has tightened the terms of policy for itself and its member associations, and of the world, the effect of which is a discriminatory new employees. There is nothing sacrosanct about appointment so as to ensure that the job ofleris restricted to a has advocated the adoption of such policies in Aus­ pattern of outcomes for women, It has taken longer fixed term and therefore outside the requirements of the Act any conditions of employment in perpetuity but tralian universities. The Chairman of the N.S.W. to understand these more complex forms of dis­ Since I left in 1977 it may be that there has been increased Board "has called on universities both the benefits and costs of change must be fully difficulty in claiming that such appointments do not fall within crimination and for the law courts to acknowledge assessed. Easing costs in one area increases them the terms of the Act, hence the Vice-Chancellor's comment. I to establish affirmative action programmes to rec­ diSCrimination in the absence of intended discrimi­ elsewhere. do not know. For the Lecturer grade (there are no Senior tify the disadvantages currently suffered by female natory acts, Lecturers or equivalent) to which admission can only be academics".' Many universities have recently­ gained through open advertisement competition the Statutes Direct intended discrimination Changes should be made for good and enduring provide for appointment for three years in the first instance, formed women's groups actively pushing for affir­ reasons, most advantageously with cooperation of with the possibility of a further three before appointment runs mative action. And individual academic women are This first form has been called "motivation" discrimi­ employers and staff, because goodwill should not to the retiring age of 67. Such terms may be regarded as in beginning to insist on their rights to equal nation, and occurs when the discriminator know­ be dismissed as irrelevant. As the academic stand­ contravention of the 1975 Act and doubtless place appointing opportunity. ingly acts on the basis of a belief which bodies in a dilemma With their only protection being the more discriminates against women. The act of discrimi­ ing of institutions is of critical international concern rigorous scrutinising of potential staff before appointment both for schools and for students, due attention This. whilst it imposes costs. is more necessary as WOUld-be However, in the United States, while affirmative nation can be identified by all parties as "a series of must be paid to the international mobility implica­ employees for whom security in the job tends to outweigh pay action plans have resulted in an increase in the isolated and distinguishable events,. ," which have considerations are now more likely to seek such posts. One numbers of women employed, they have not the effect of preventing a particular woman from tions of proposed changes as the quantum and must presume that such types 01 applicants would be those quality of university staff are indelibly interwoven whose alternative job opportunities are more restricted brought about a change in attitude." Though it was gaining access to work or to promotion,4 It has also with the whole social fabric and industrial system of not at any time a requirement that merit be put aside been called "ill-will" discrimination though it may the nation, Be that as it may, one cannot overlook the fact that It was as the primary basis for selection and promotion, not be experienced by the discriminator as moti­ legislative provision that led in part to the phenomenon now many men nonetheless perceived the "new" women vated by ill-will. If, for example, a male discriminator The implications of educational reform are essen­ being decried as inferior, asserting that they had been employed fails to employ a young woman who is better quali­ tially long-run - hence they must be well thought through "reverse discrimination", not through merit. fied than a young man he does employ, on the basis through. In such a review political expediency In other words the discriminatory attitudes, while of a belief that the woman will inevitably leave work should have no place. perhaps a little more self-conscious, were still very to have children, he may experience no feeling of much in evidence. It is to the conceptual frame­ ill-will towards the woman in question, though the works which give rise to these attitudes that we consequences for her caree.r may be quite damag­ must turn our attention if affirmative action in Aus­ ing. His action may be identified by her as an act of tralian universities is actually to achieve anything ill-will. Regardless of any wish to do harm, if his beyond a slight increase in the number of women intention was to exclude her on the basis of charac­ employed and an accompanying increase in nega­ teristics which he assumes attach to all females and tive attitudes towards these women. if he acknowledges the reasons for his decision (if only to himself), then his act belongs in this cate­ This paper sets out to analyse discrimination, draw­ gory of direct intended discrimination, ing on the understanding of the term developed through the enactment of a variety of Anti­ Discrimination Acts, and to show, through a case Direct unintended discrimination study of one university, how discrimination mani­ This second form of discrimination occurs when fests and perpetuates itself in a systemic cycle of the discriminator treats two people of equal qualifi­ discriminatory attitudes, acts and outcomes. cations differently. perhaps not realising that his action is being influenced by invalid assumptions Discrimination about the nature of the social world. In proving this Discrimination occurs at four levels. These levels form of discrimination it is the action rather than the are partly historical. At the first level are the more motivation that is the critical defining feature of the direct, readily recognisable forms of discrimination discriminatory act." Though the person discrimi­ which were the first to be judged inadmissable and nated against may believe that the discriminatory unlawful.~ The more complex forms of discrimina­ act was motivated by discriminatory intent, it may tion may be neither direct nor intended and are be equally plausible to believe that the discriminator identifiable more in terms of actions and outcomes has simply failed to examine or even take cogniz-

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