Thousands of casual academics are owed millions of dollars in backpay after a critical intervention from the National Tertiary Education Union led to a landmark court decision.
The Full Federal Court has overturned a decision from last year, which found that award-covered casual academics could be required to perform effectively unlimited marking as part of the "rolled-up" hourly rate they receive for lecture and tutorial delivery.
The appeal judgment confirmed universities cannot use casual lecture and tutorial pay rates as a bottomless pit for unlimited unpaid marking work.
The NTEU successfully intervened in the appeal between the Fair Work Ombudsman and Torrens University, with the Full Court adopting the NTEU's interpretation of "associated working time" under the Higher Education Industry – Academic Staff Award.
The Court found the lecture rate compensates a casual academic for one hour of delivery and a limited body of associated work, mainly preparation, and potentially things like marking an assessment administered during the lecture itself.
Ordinary marking of student assessments not undertaken during a lecture or tutorial is a separate activity that must be paid at the separate marking rate.
The ruling also clarifies that how much "associated working time" a casual academic actually works is a matter for the employee to determine, rather than being something the employer can direct.
NTEU General Secretary Dr Damien Cahill welcomed the decision as a historic win for casual workers across the sector.
"This is a massive victory for the tens of thousands of casual academics who are victims of wage theft from doing hours of unpaid work," Dr Cahill said.
"The NTEU has consistently argued lecture and tutorial rates are not a blank cheque for universities to pile on unlimited unpaid work. Marking is separate work that must be paid separately.
"Last year's decision threatened to unravel a decade of progress on tackling wage theft in our universities. This ruling slams that door shut.
"This decision puts vice-chancellors on notice: the days of treating casual staff as an endless source of free labour are over."
Counsel for Torrens University conceded at trial that, on the correct interpretation of the Award that has now been confirmed by the Court, the university has systematically underpaid all of its casual staff, estimated at more than 1,000 people. Long serving casual staff are owed thousands in backpay.
NTEU Victoria Division Secretary Sarah Roberts said the decision would make a real difference to thousands of lives.
"Universities have been getting away with this for years - expecting casual academics to mark stacks of assessments for effectively nothing, buried in a rolled-up hourly rate that was never designed to cover it," Ms Roberts said.
"We already won a landmark case against Monash University last year on unpaid consultation time. This decision builds directly on that.
"Universities should be in no doubt: the law is clear and strengthens our resolve to stop rampant wage theft."
The Full Court's decision follows the NTEU's successful case against Monash University last year, which found that Monash could not direct casual academics to perform scheduled student consultation as part of assumed "associated work" linked to a rolled-up casual tutorial rate.
Together, the two decisions confirm rolled-up casual rates are not a substitute for payment for additional work.
Nationally, underpayments across the sector exceed $284 million and universities have made provisions for a further $168 million taking the total beyond $450 million.
