Torrens U has applied for special leave to appeal to the High Court in a case on payments for casual academics.
Torrens U had been paying people the one sum for teaching a course and for marking students work in it. The Fair Work Ombudsman contended the two tasks were separate under the HE Award. The argument went to the Federal Court where the university won. “I am satisfied that consistently with established principles of construing modern awards, the words ‘associated working time’ extend to the marking by lecturers of assessments undertaken by their students where the assessment is directed at the content of lectures that they have given to their students,” Justice Halley stated.
However, in March, the judgement was overturned on appeal, with Justice Lee, for a full bench, finding marking was a separate task to teaching. “The separate marking rate applies to the ordinary activity of marking assessment tasks. The circumstance that the academic performing the marking also delivered lectures in the subject does not alter the character of that work. To construe the clause otherwise would substantially deprive the marking rate of independent operation and would fail to give meaningful effect to the structural distinction drawn by the Award.”
Now Torrens U wants to have another go. “We disagree with the Full Court’s interpretation of the relevant provisions of the Higher Education Award, and we consider that the judgment raises important questions about the interpretation and application of the Award that may have broader implications for the tertiary education sector.”
Too right it does.
For a start, private HE providers in general employ staff under the Award and a win for Torrens could be seen as a precedent by others. And while all public universities have enterprise agreements, the Award can underpin provisions in them.
But any savings in teaching would come at a cost to the overall image of higher education.
For years the Fair Work Ombudsman has engaged with just about every public university in the country over underpaying staff. In most case the cause was incompetence, staff not understanding the pay provisions of their university’s agreement; but union allegations of “wage theft” were loud and frequent.
The Australian Higher Education Industrial Association, representing mainly public universities, tells FC it respects Torrens U’s decision to seek leave to appeal to the High Court. However, it is, “focused on proactive wage integrity and working constructively with the Fair Work Ombudsman, unions and employees to identify issues early, remediate them promptly, and strengthen systems to prevent recurrence.”