In a landmark decision, the Full Federal Court recently confirmed that casual academics must be paid separately for marking subject assessments, rejecting the position that such tasks can be bundled into payment for ‘associated working time’. As universities submit their compliance attestations for the first time, they can no longer afford to treat marking pay as a grey area.
The facts
Ms Lucas was a casual academic at Torrens University. She prepared and conducted lectures, marked assessments, and was available to provide support for students.
Torrens paid Ms Lucas in accordance with the Higher Education Industry-Academic Staff-Award 2020 (Award). The rates of pay in the Award for teaching lectures and tutorials are payable for each hour of delivery and, depending on the type of lecture or tutorial, include payment for a certain number of hours of ‘associated working time’.
Those in the higher education sector will know two things:
- Paying casual academics rates that include a number of hours of ‘associated working time’ is common practice (whether under the Award or in accordance with an applicable enterprise agreement).
- What is included in ‘associated working time’ has been the subject of long-running debate, including in relation to marking.
While Torrens paid Ms Lucas the relevant lecture rate in the Award, it did not pay her a separate amount for time spent marking (other than for late submissions or marking the work of students she did not teach).
The dispute
The Fair Work Ombudsman alleged Torrens had breached the Award by failing to pay Ms Lucas the marking rate in the Award for performing certain marking duties.
Torrens argued that it was not required to pay Ms Lucas the marking rate for these duties as marking assessments for subjects taught was included in the ‘associated working time’ portion of the relevant lecture rate in the Award.
The decision
The Full Federal Court held marking of subject assessments was not included in the ‘associated working time’ portion of the Award rate and should be remunerated under the marking rate provisions, subject only to marking that is genuinely associated with the hour of delivery (e.g. closely connected, lecture-specific marking tasks, such as the marking of tests or other forms of assessment administered during a lecture).
How Australian universities should respond
Higher education providers should take steps to ensure the way they pay casual academics aligns with this development. This is particularly important as Australian universities attest to their workplace law compliance for the first time.
If casual academics are paid in accordance with the Award, they should be paid for marking subject assessments in line with the decision.
The impact of the decision on higher education providers who pay casual academics under an applicable enterprise agreement will need to be assessed on a case-by-case basis. This is because the enterprise agreement may have different payment arrangements, or deal with ‘associated working time’ differently.
While enterprise agreements can lawfully deal with ‘associated working time’ differently than the Award, higher education providers with less beneficial arrangements should expect this to be a point of discussion in negotiations for a replacement enterprise agreement.
Need support with your workplace legal obligations?
Source has extensive experience in the higher education sector, including ensuring providers comply with their workplace law obligations.
If you have any questions or require assistance to ensure your pay practices align with the decision, please get in touch and a member of our team will be in contact.
Prepared by Riley Anastasio, Legal Counsel (Employment & Safety).
