Torrens U is out of options in the case brought by the Fair Work Ombudsman over paying academic casuals.
The university had sought special leave to appeal a Federal Court full bench judgement. But the High Court has knocked Torrens back, stating, “there is no reason to doubt the correctness of the Full Court's decision, which applied orthodox principles of interpretation. The proposed appeal lacks sufficient prospects of success to warrant the grant of special leave.”
This ends a case that started when the Fair Work Ombudsman challenged the university over paying a casual academic a single amount for teaching and marking a course. The FWO contended that they were separate tasks under the HE Award, which the university uses in place of its own enterprise agreement. The dispute came down to what “associated working time” covered.
The dispute went to the Federal Court, where Justice Halley found for Torrens, deciding, ‘associated working time’ covered a casual lecturer marking assessments in subjects they taught and that a separate rate applied to work in subjects they marked but did not teach.
The FWO appealed, and a full bench of the Court agreed. Justice Lee stated that the critical question was what the HE Awards means “as an industrial instrument of general application of the HE sector.”
“The construction of the Award therefore cannot turn upon the specific teaching arrangements of a single institution or the particular workload pattern of one employee. The instrument must be interpreted so that its categories of work retain meaning and operate sensibly across that diversity.”
With the High Court refusing to hear an appeal, Torrens U must now comply with the FWO’s compliance notice. The university advises it is complying with the Federal Court judgement and has “implemented revised payment arrangements,” “including separate payment for marking undertaken by casual academic staff where required.”
Given public universities have their own enterprise agreements, the case does not directly impact other institutions; but the award underpins working conditions across the sector and the case enforces its authority.