Fair Work inspector claims employer shortchanged casual staff, but employer fights back
The Federal Court of Australia recently resolved an employment dispute that examined how casual academic staff should be compensated for their work activities.
The case specifically focused on interpreting "associated working time" provisions within higher education industry awards and determining whether certain duties should attract separate payment or fall within existing hourly rates.
The dispute arose when a Fair Work Inspector issued a compliance notice on 19 March 2024, alleging that a university had failed to properly compensate a casual academic lecturer for marking student assessments.
The inspector argued that the university should have paid separate marking rates for this work, beyond the standard lecturing payment that included "associated working time."
The university challenged this interpretation, leading to a comprehensive Federal Court review of award provisions and their practical application in educational settings.
The case involved a casual academic lecturer who had been employed by a university's Design Faculty since 15 May 2017 to teach design-related subjects.
Under the Higher Education Industry – Academic Staff – Award 2010 and its 2020 successor, the university paid her the casual basic lecture rate but did not provide separate payment for time spent marking student work, except in limited circumstances such as late submissions or marking work for students she did not teach.
The award structure provided specific payment rates for different academic activities. Under the 2020 Award, a basic lecture payment of $160.48 covered "1 hour of delivery and 2 hours associated working time," while separate "standard marking" rates of $41.71 were specified for assessment work. The central question was determining when marking activities fell into each payment category.
The lecturer's workload was substantial, teaching between two and seven subjects per trimester. Each subject typically involved one three-hour lecture weekly and three to four assessments per trimester.
With an average of 15 students per bachelor subject, she could face between 90 to 420 assessments to mark each trimester, depending on her teaching load.
The Fair Work Ombudsman (FWO) maintained a restrictive interpretation of "associated working time," arguing that marking could only be considered part of this category if it was "directly related to the delivery of a particular lecture or tutorial."
The compliance letter stated: "It is [the FWO's] view that when marking is undertaken by [the lecturer] of her students work in a given trimester including the Week 13, like the examples above, this is not considered 'associated working time' because it is not directly associated with the delivery of a particular lecture or tutorial."
This interpretation would have required universities to pay separate marking rates for assessments covering multiple lectures or broader subject matter.
The inspector argued that assessments testing students' knowledge across various lectures delivered during a trimester should attract the separate marking rate rather than being included within the lecturing payment.
The FWO's position was based on what they described as a "plain language interpretation of the Award," viewing "associated working time" as needing to be directly related to the delivery of a particular lecture or tutorial.
The university strongly contested the FWO's interpretation, arguing that it was both impractical and divorced from educational realities.
They maintained that the lump sum payment for lecturing time was based on estimated time assessments rather than requiring specific monitoring and recording of actual time for "associated working time" for each individual lecture.
The university submitted that marking should be included as part of "associated working time" and that it would be highly difficult and impractical to monitor any construction that would limit "associated working time" to specific lectures.
They pointed to evidence that assessments marked by the lecturer related to the subjects she taught as a whole, not to individual lectures, making the FWO's approach artificially restrictive.
The court heard crucial expert evidence about modern teaching practices that directly challenged the inspector's narrow interpretation.
An associate professor provided detailed testimony about educational methodology, explaining that effective teaching practice requires integration across lectures rather than treating each session as a discrete unit.
The expert explained the concept of educational scaffolding: "Consistent with good pedagogy, matters taught earlier in the subject should not be simply left aside on the assumption that the student now understands those matters. Those matters need to be revisited and integrated in future lectures to ensure such learnings are properly grasped."
This educational approach meant it was "improbable that any assessment at [the university] would ever be limited to the delivery of a particular lecture or tutorial."
The evidence highlighted that assessments rarely, if ever, focused solely on content from a single lecture session.
Instead, they typically tested students' understanding of interconnected concepts taught across multiple sessions, making the inspector's "directly related" test unworkable in educational practice.
The court applied established principles for interpreting modern awards, emphasising that words must be construed in their industrial context rather than in isolation.
The judge explained that "the words must be construed in light of their industrial context and purpose, and not in a vacuum divorced from industrial realities."
The judge ultimately rejected the FWO's restrictive interpretation of "associated working time," finding that the phrase extended beyond work directly related to individual lectures.
The court determined that "associated working time" encompassed broader educational activities, including assessment marking within subjects taught by the academic.
Crucially, the court found no textual support in the award provisions for requiring a "direct relationship" to specific lectures.
The judgment noted: "The word 'associated', connoting a form of connection, is of significantly broader import than 'directly related'. Textually, there is no reason to exclude working time in marking an assessment that concerns subject matter covered in two or more lectures from working time that was associated with a lecture."
The decision acknowledged that the FWO's restrictive approach would create problems beyond just marking activities.
The judge noted that student consultation would face similar categorisation difficulties: "It would be inherently problematic if lecturers were required to approach consultation with students on the basis that if the matters discussed were limited to the content of a discrete lecture it would be included in 'associated working time' for lecturing but if the consultation was with respect to a topic or issue that had arisen in more than one lecture, then the lecturer could claim remuneration on an hourly basis."
The Federal Court ultimately declared that the compliance notice was "founded on an incorrect construction of the 2010 Award and the 2020 Award and accordingly is bad at law."
The judge concluded that "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."
The court emphasised that this interpretation would "provide a 'sensible industrial outcome' given that at least some marking is generally accepted to fall within associated working time and assessments are rarely, if ever on the evidence before me, confined to single lectures."
