The Fair Work Ombudsman will appeal a court win by Torrens U over a way it pays causal staff. It is another case of university managements hanging tough on staff costs.
Torrens went to the Federal Court asking it to cancel a Fair Work Ombudsman compliance notice. The FWO alleged that the University contravened two successive Higher Education Awards in the way it paid a casual academic for marking. The issue came down to what “associated working time” covered.
Torrens claimed that one payment covers an academic delivering lectures and then marking their course. The Ombudsman argued the phrase referred to work related to delivering a lecture and that marking should be paid at a separate rate.
Justice Halley found for Torrens, concluding the FWO’s notice was founded on “an incorrect construction” of the awards and is “bad at law.”
“The words ‘associated working time’ in those clauses extend to all marking undertaken by a casual lecturer of assessments in subjects taught by that lecturer and that the “marking rate” in those clauses applies in circumstances where a lecturer undertakes marking of assessments for subjects not taught by the lecturer,” His Honour said.
The FWO has appealed and will not comment, but that is not stopping the National Tertiary Education Union, which warns that casual academics working under the HE Award may now be paid for lectures, but not for marking assessments.
This, NTEU General Secretary Damien Cahill argues, “risks turning tutorial and lecture rates into bottomless pits where staff can be forced to mark stacks of essays or exams for free.”
Even if it stands, the Torrens decision will not apply, for now, to casual staff at public universities which have their own enterprise agreements and do not rely on the HE Award. But it may in the future, if university managements seek to use it as a precedent for terms in their next EA.
Certainly, university managements are taking harder lines on what they claim they actually agreed to in enterprise agreements.
The Federal Court has just found against Monash U in another case over pay rates. The university argued that the Enterprise Agreement tutorial rate applied for casual academics’ consultation hours for students. The NTEU argued that the agreement specified a separate and higher rate. The dispute was underway for three years before it reached the court where Justice Snaden found for the union that within the meaning of the EA consultations were not “tutorial work.”
And Uni Melbourne has just lost in the Fair Work Commission, in a case where it argued that its Enterprise Agreement did not give existing casual staff a right to apply and be considered for continuing jobs before they are externally advertised.
That the university went to the time and expense to pursue the case appears to indicate a tougher approach on agreements. The next round of EA bargaining could be longer, and harder.