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UPDATED: The university wanted to classify all student consultations within a week of lectures and tutorials as unpaid “associated work” for its casual academic staff.
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Monash Uni loses appeal to rewrite staff agreements, dodge $9m bill
06 October 2023
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Monash University has lost an appeal to overturn a Fair Work Commission ruling that stopped it from rewriting a three-year-old enterprise agreement with its casual academic staff in order to avoid $9 million in back pay.
Fair Work Commission vice-president Ingrid Asbury struck down the university’s contention that deputy president Val Gostencnik incorrectly applied the Fair Work Act to prevent its rewriting of an uncertain enterprise agreement from 2019.
The National Tertiary Education Industry Union said that 4,500 staff would lose out on a collective $9 million in unpaid wages if the appeal had gone in Monash University’s favour, but it would now proceed with its claim in Federal Court.
NTEU national president Dr Alison Barnes said the decision was “the end of the road for Monash's extraordinary attempt to dodge a wage theft claim”.
"Retrospectively allowing an employer to change an enterprise agreement would have been a dangerous precedent for all Australian workers,” she said.
“Casual staff at Monash will get their overdue day in court over these incredibly serious wage theft allegations against Monash."
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After the union sued Monash over unpaid wages in the Federal Court in November, the university attempted to change its agreement with casual staff in the FWC to classify all student consultations within a week before or after lectures and tutorials as unpaid “associated work”.
However, the FWC’s decision to uphold Mr Gostencnik’s ruling represented its reluctance to change enterprise agreements to apply retrospectively without “heightened considerations”.
Mr Gostencnik said a retrospective variation would affect both those who first made the agreement in 2019 and those who were covered by it after it was made.
“The deputy president correctly identified that … taking into account the position of the latter group, and the impact on that group of the passage of time, was rationally capable of bearing on the commission’s determination about whether to vary the agreement retrospectively,” Ms Asbury said.
Ms Asbury said Mr Gostencnik’s reasoning was consistent with previous FWC decisions, despite Monash University contending he incorrectly ruled that the university and its staff needed a “common intention” to change the agreement validly. The university also argued that in declining to change the agreement, due to not finding a shared understanding, Mr Gostencnik had “fettered” his decision-making powers.
Ms Asbury said, “his observation that the circumstances in which the commission would exercise discretion without evidence of mutual intention are ‘limited’, finds support in the authorities and is entirely orthodox.”
“Any variation would risk having the effect of improving or diminishing the legal position of either the employees covered by the agreement or the university, and that this would occur without any principal assessment of how those legal rights would or should be affected.”
“Altering [the agreement] could potentially benefit one party over the other without a clear assessment of the impact on their legal rights.”
Monash University’s failed appeal comes after the university sector was accused of mass casualisations and endemic wage theft during submissions to the Universities Accord Panel, the sector’s largest review in a decade.
Then-deputy Fair Work Ombudsman Rachel Volzke said she saw a “pattern of repeated and often entrenched non-compliance by universities, particularly in relation to casual staff”.
Last year, the FWO accepted court-enforceable undertakings with University of Newcastle and Charles Sturt University for $6.2 million and $3.2 million respectively. It sued the University of Melbourne over $150,000 in underpayments to casual staff in February and forced the University of Technology Sydney to hand back $5.7 million in unpaid wages in May.
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