Monash University has lost a four-year industrial dispute over whether casual wages for teaching should cover timetabled student consultations taking place up to seven days later.

A Federal Court judge has found?that the university contravened the Fair Work Act by treating staff-student interactions as ¡°contemporaneous consultations¡± requiring no payment, even if they were scheduled to occur a week before or after related tutorials.

In a published on 4 July, Justice John Snaden said the consultations ¡°ought to have been paid¡± as ¡°other required academic activity¡±.

¡°It is one thing to acknowledge¡­that students may wish to consult with their tutor prior to or following a tutorial, and to accept that¡­that should not attract additional payment. It is quite another to require, regardless of demand, that a tutor make him or herself available for consultation at a nominated time and place and for a nominated period.¡±

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The decision resolves a case that began in late 2021, after Monash underpaying staff by A$8.6 million (?4.1 million) because of ¡°timesheet submission errors¡± and ¡°inconsistent descriptions of teaching activities¡±.

The National Tertiary Education Union (NTEU) said the problem was worse than described because of the university¡¯s practice of not paying for scheduled student consultations. A staff demanded separate payment ¡°in addition to the ¡®rolled up¡¯ tutorial rate¡±.

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The union eventually initiated legal action to force Monash to remunerate about 4,500 current and former casual staff for unpaid consultations. The university responded by attempting to retrospectively insert a clause in its 2019 enterprise agreement ¨C a manoeuvre rejected by the Fair Work Commission. An appeal against that decision was overturned in late 2023.

The NTEU¡¯s Victorian secretary, Sarah Roberts, said the university should now make good. ¡°It¡¯s time to stop trying to use every legal trick in the book to dodge responsibility and pay up.¡±

The NTEU¡¯s Monash branch president, Ben Eltham, called on the university leadership not to appeal the latest decision. ¡°Don¡¯t waste any more staff and students¡¯ money on lawyers. Do the right thing and pay back your teachers what they are lawfully owed.¡±

The university said it had pursued the court action ¡°to obtain clarity on an ambiguous provision¡± in its enterprise agreements. It said it was ¡°pleased¡± that the court had ¡°clarified¡± the ambiguity.

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¡°Monash is committed to paying its staff accurately, in line with our¡­obligations,¡± a spokesman said. ¡°We are also committed to continuously improving the systems and processes that support these payments.¡±

The university has already acknowledged underpaying staff over A$17 million, following a further admission in January. Eltham said he expected the latest judgment to add ¡°millions¡± more to the underpayment tally, with the amount to be determined at a future hearing.

He said the university should also be penalised. ¡°They¡¯ve broken the law. This should never have required us to litigate in the Federal Court. When we brought the evidence to them, that was the time for them to sit down with the union and negotiate to backpay their staff.

¡°They¡­were doing this, in my opinion, to try and exhaust us legally and financially, in the hope that they could litigate their way out of the problem, rather than admit to what they¡¯ve done and actually fix it up.¡±

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john.ross@timeshighereducation.com