National Tertiary Education Industry Union v Curtin University - [2025] FWC 3091

[2025] FWC 3091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

National Tertiary Education Industry Union
v

Curtin University

(C2024/8740)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 15 OCTOBER 2025

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]- Dispute notified – workload allocation – consideration of provisions of Agreement re: process for allocation of workload – Respondent not compliant with requirements of the Agreement – parties to confer on remedy.

The National Tertiary Education Industry Union (the Applicant) has made an application to the Fair Work Commission (FWC) under s.739 of the Fair Work Act 2009 (Cth) (the Act) asking the FWC to resolve a dispute with Curtin University (the Respondent) regarding the allocation of workload to academics.

Background

It is uncontroversial between the parties that the Curtin University Enterprise Bargaining Agreement 2022-2025 (the Agreement) contains the following provisions:

19.2(e) The Head of School will allocate workload in consultation with individual Academic Employees within the School and in accordance with the applicable work allocation model as per this clause in a fair, equitable and transparent manner.
19.2(f) Through this process, the Head of School will, in consultation with directly affected Academic Employees, ensure that the time allocated to perform any defined task is reasonable and will be an accurate representation of the time taken to perform that task.

The parties also agree that these provisions were inserted during bargaining for the Agreement, and amended a provision found in the predecessor agreement, being the Curtin University Academic, Professional and General Staff Agreement 2017-2021 (the 2017 Agreement). The provision of the 2017 Agreement which was amended is as follows:

22.3.7 The Head of School will determine, after consultation with academic Staff Members within the School, the allocation of academic workload within the School. The Head of School will use their best endeavours to allocate academic workload in a fair and transparent manner.

It is not my intention to set out the entire history of the dispute, save to say that the Respondent had some issues with the way the dispute had been raised with it and how it came to be before the FWC. It had consequently raised some jurisdictional concerns over the course of the process of dealing with the dispute. By the time the dispute came to hearing, the Respondent took the view that while the FWC was empowered to arbitrate the dispute, it could not provide the remedy sought by the Applicant as such remedy would constitute an impermissible modification of the Agreement.

What is in Dispute?

In its notification of the dispute, the Applicant claims that there has been a failure by the Respondent to consult with individual academics to allow the fair, equitable and transparent allocation of workloads (cl.19.2(e) of the Agreement). It further claims that the Respondent has failed to develop processes to ensure that the time allocated to a particular task is both reasonable and an accurate representation of the time taken to perform the task (cl.19.2(f) of the Agreement). As a consequence, the Applicant says that in many cases the time allocated to a task does not accurately represent the time taken to perform that task. The Respondent denies that it is in any way in breach of its obligations under the Agreement.

The Applicant proposed three questions for determination, as follows:

“Question 1: does clause 19.2(f) of the Agreement require the Respondent to ensure that the time allocated to perform any defined task is reasonable and is an accurate representation of the time taken to perform that task?
Question 2: Does clause 19.2(e) require that the Respondent allocate workload in accordance with the applicable workload allocation model in a fair, equitable and transparent manner?
Question 3: If Clause 19.2(f) of the Agreement requires the Respondent to ensure that that the time allocated is an accurate representation of the time taken to perform the task, does the Respondent’s current process of allocating workload—specifically, the Faculty of Humanities Workload Allocation Parameters—accurately represent the actual time needed to perform the relevant academic tasks?”[1]

It appeared to me that questions one and two were simply affirming the plain English meaning of the words in the Agreement. As such, I put this to the Respondent at the beginning of the hearing and the Respondent confirmed that it accepted that the answer to both questions was yes. Given this, the focus of my analysis is on question three – does the process of allocating workload accurately represent the actual time taken to perform the relevant academic tasks.

Representation

The Applicant was represented by an employee of the NTEU and as such did not need permission. The Respondent sought leave to be represented, and the Applicant objected to such representation. However, one party objecting to the other being represented is not determinative of the issue. The Commission needs to be satisfied that one of the conditions in s.596(2) is relevant and then decide whether to exercise discretion.

In this matter I was persuaded by the submissions made by the Respondent with respect to complexity, and more particularly the two issues of conduct of cross examination of witnesses and the limits on the jurisdiction of the Commission with respect to remedy. It has been my experience that the presence of lawyers – or indeed trained advocates - significantly improves the efficiency and effectiveness of cross examination. I am also mindful that if it is found that the University is in breach, there are likely to be significant differences between the parties as to remedy and the presence of lawyers will assist the Commission in navigating that issue. Given this, I granted permission for the Respondent to be represented.

Submissions and Evidence

The Applicant submits that the principles for enterprise agreement interpretation are well settled and cites the findings of the Full Bench in AMWU v Berri Pty Ltd [2017] FWCFB 3005. The Applicant further submits that the higher education sector typically does not operate with set or fixed hours of work, but rather with systems of workload allocation such as those found in enterprise agreements negotiated with the Applicant.

The Applicant drew upon the findings of the Full Bench in NTEIU v Flinders University of South Australia where the Full Bench described academic work as frequently demanding, to a significant degree self-directed and autonomous and where conventional hours of work and overtime provisions are not well-suited.[2] It further submitted that if a workload allocation model underestimates the time taken to perform a particular task, then the individual academic in question will be overworked.

The Applicant notes that workloads at the Respondent are regulated through the operation of clause 19 of the Agreement, which pertinently requires that workloads be allocated in consultation with individual academic employees, in accordance with the applicable workload allocation model in a fair, equitable and transparent manner.[3] Further, the clause requires that the time allocated to a task is an “accurate representation of the time taken to perform that task”. The Applicant submits that the plain English meaning of those words means that as part of complying with them, the Respondent is obliged to form an accurate understanding of how long a task actually takes to perform.

The Applicant further submits that this language is deliberate and confirms an intent to put reasonable limits around working hours – which can only be achieved once the actual time taken for tasks has been ascertained. It says that if the Respondent has not established the accuracy - and by extension reasonableness - of the time taken to perform tasks then it cannot be said to be allocating workloads in a manner consistent with the requirements of the clause.

The Applicant’s submissions also addressed a number of contentions made by the Respondent in its initial response to the application. Given that the Respondent concedes that the answer to questions one and two is “yes”, and it has provided an updated response in its own submissions, I do not intend to traverse that part of the Applicant’s submissions.

With respect to the third question, the Applicant submits that there is clear and compelling evidence that the Faculty of Humanities Workload Allocation Parameters (Faculty Parameters) do not accurately reflect the time taken to perform relevant academic tasks. While it concedes that some initiatives have been put in place in the School of Design and Built Environment (DBE) to address workload issues, it submits that the Respondent has not sought to properly enquire about how long it takes to perform the relevant academic tasks contemplated by the Faculty Parameters. Given this, the Applicant says that the Faculty Parameters upon which the Respondent relies are inconsistent with the binding obligations set out in the Agreement which require that the time allocated to perform any defined task is reasonable and will be an accurate representation of the time taken to perform that task.

Evidence for the Applicant was provided by Dr Ben Rich (Senior Lecturer), Dr Courtney Babb (Senior Lecturer), Dr Francis Russell (Organiser for the Applicant), Dr Paul Gardner (Senior Lecturer) and Ms Younghye Seo Whitney (former Associate Lecturer). I note with regard to the NTEIU witnesses that they gave - to varying degrees - evidence about a range of tasks associated with their academic work and the issues therein. I have deliberately chosen for the sake of brevity to focus on two tasks which are marking and dealing with AI monitoring. I take these as examples of tasks where some of the academic witnesses regarded the time allocation as inaccurate (marking) and where some witnesses claimed the task was not recognised (AI monitoring).

Dr Ben Rich gives evidence that he has worked as an academic for over fifteen years, during which time he has taught twenty separate units of which five he designed from scratch. In his experience:

“…allocations for tasks are determined by the Faculty of Humanities Workload Allocation Parameters (Faculty Guidelines or Faculty Parameters) attached to workload spreadsheets, which stipulate hard maximum limits for tasks.”[4]

Attached to Dr Rich’s statement was a copy of those parameters.[5] I do not propose to canvass the entirety of that document but will instead draw upon one of the activities set out therein, being “Marking (Assessment).” According to the column headed “2024 Faculty Guidelines,” the workload allocation is one hour “per student marked assessment,” which read in context, appears to mean that there is one hour per student allocated for the task of marking – grading – all items of assessment in that unit. I note there is an exception to this rule for those units with “50 CP” which I take to be more complex units.

Dr Rich goes on to state that in his school,

“…workload allocation has always been in consultation with a line manager. The Head of School (HoS) has never been involved with the allocation of workloads at MCASI. To the best of my knowledge, at no time has either the DHoS or HoS reviewed tasks to ensure that the time taken for tasks involved in said workloads is reasonable or accurate for…staff.[6]

Dr Rich further states that in his examination of the Faculty Parameters the time allocated to perform many of the academic tasks in the document is neither reasonable nor an accurate representation of the time taken to perform the task and that the Faculty Parameters underestimate the time needed. With respect to the specific issue of marking, Dr Rich notes that the one hour provided for this task is to be divided over a maximum of three assessments. He then gives the following example to illustrate the inadequacy of this time allocation:

“For example, one assessment in HIST2002 – Politics of the Modern Middle East requires us to mark a 2,000-word essay in 30 minutes. Time required is often to perform this task is generally significantly more. It includes critically and analytically reading the paper itself (25-40 minutes depending on complexity and student capacity), providing in-text comments (5-10 minutes), integrity checking by following up sources and checking for AI/Turnitin scores (5-10 minutes), as well as allocating rubric scores and writing summative feedback (5-10 minutes). This means that assessing an assignment of this size can run anywhere from 40 minutes up to over an hour in the worst cases.[7]

I asked Dr Rich about this at hearing and posed the question as to whether given the marking time taken as per his assessment, and given the Respondent seemed to put the responsibility for assessments with the academic, the academic could simply reduce the essay down to – for example - 1,000 words. Dr Rich’s evidence was that in the first instance his students thought that 2,000 words was too short to allow them to properly develop their arguments. In the second instance he raised the concern that in doing so the assessments might fall below the standard required in the tertiary education sector.

Counsel for the Respondent drew upon this exchange to point out that the Head of School had examined the example at [20] above and said of Dr Rich that he was “gold-plating it,” which he clarified to mean that Dr Rich was regarded as applying a standard above what the Respondent required. Dr Rich in response took the view that he was applying a proper academic standard. However, the Respondent persisted with this line of questioning by suggesting that in “gold-plating” his marking he was creating inconsistencies with those academics who were undertaking marking in accordance with the Respondent’s expectations.

Dr Rich also drew my attention to the increasing problem of academic misconduct via the use of AI. Where there is a suspicion that students use AI to write essays the academic must take certain steps to determine if this is indeed the case. It was Dr Rich’s evidence that there was no time allocated to this particular task in the Faculty Parameters even though the incidence of the practice of using AI was on the rise.

During cross-examination I found Dr Rich to be a very persuasive witness, and I did not find his evidence to be seriously challenged in any way. In re-examination, he was asked about having automated – essentially removed the need for him to mark - one of the three assessments in one of his units, which he conceded that he had done. His evidence was that he nonetheless still exceeded the one hour allocated for marking. When asked why this was so he responded as follows:

“Because of the duty of care required. Because of the requirements to provide high level feedback to students and to ensure that they are growing effectively and that they’re critically reflecting on these complex and nuanced topics that require a lot of sensitivity.”[8]

Evidence was also provided by Dr Courtney Babb. It was Dr Babb’s evidence that the academic workloads in his school were determined by the Faculty Parameters, which he says are based on the University Workload Parameters (University Parameters). It was Dr Babb’s further evidence that his faculty had made adjustments away from the University Parameters, often with lower default values for the maximum amount of time allocated to complete a task.

Dr Babb states that he is part of a new panel established by his school to oversee academic workload allocations. He is cautiously supportive of the panel and its capacity to improve workload allocations. However, his evidence is that the:

“…fundamental issues regarding the amount of time allocated for various workload duties as set out in the parameters remain unresolved.”[9]

It also emerged during the hearing that on Dr Babb’s evidence the panel could not allocate more time to a task than was provided in the Faculty Parameters.

With respect to the issue of marking, Dr Babb states as follows:

“Marking is far more complex than a simple time-based calculation suggests. Multiple factors contribute to the complexity of assessment, including diverse assessment types, academic integrity checks, and the need for substantive, constructive feedback. Each assessment requires careful evaluation of student learning and providing guidance that supports future academic development.
As an experienced academic, I have developed strategies to streamline marking, typically completing most assessments within 20 minutes, although outliers often increase the total workload above the 1 hour per student limit. However, this efficiency is not achievable for less experienced sessional staff. In the units I coordinate, I consistently encourage session staff to mark assessments within the allocated time, but they frequently report exceeding these limits to provide meaningful and useful feedback to students.
Some advice from Teaching and Learning leadership at School and Faculty has been to address these time constraints by reducing the number of assessments in units. Additionally, they have suggested utilising GenAI to assist with marking processes. These recommendations, however, raise significant concerns about the potential compromise of educational quality and the depth of student learning.”[10]

Dr Babb also noted the rise of instances that required academic staff to spend time addressing potential student misuse of AI. His evidence is that there can be significant time involved in such work but that it is not recognised in the Faculty Parameters.

Dr Francis Russell gave evidence of his experience during bargaining for the Agreement. At that time he was an employee of the Respondent and a part of the Applicant’s bargaining team. It was his evidence that the Applicant’s members had wanted some sort of entitlement regarding accurate workloads in the Agreement because workloads had been a long-term member concern. In support of this contention, he provided a copy of a document circulated by the Respondent,[11] that confirmed a survey of academic staff by the Respondent in 2021 resulted in less than 40% of academic staff reporting their workload as manageable.

It was Dr Russell’s evidence that in February 2023, the Respondent put a proposed enterprise agreement to staff which did not contain any improvements to academic workload. He states that 79% of staff participated in that vote and of the voting cohort 72% voted against approving the proposed agreement. Dr Russell states that the lack of provisions dealing with workload was a factor in that vote outcome. At hearing he was queried on this by the Respondent who put it to him that he could not know why people chose to vote in a particular manner. Dr Russell did not accept that this was the case and in re-examination he gave evidence that he had conducted member meetings after the unsuccessful vote and academic workload was one of the reasons given by members as to why they voted against approval. Dr Russell’s further evidence is that the Agreement was eventually approved after amendments – including the new clauses 19.2(e) and (f) – had been made to the version that failed to gain approval in February 2023.

Dr Russell’s further evidence is that when he returned to the Respondent’s campus as an Organiser for the Applicant, he formed the view – based on observations and conversations with members - that the new provisions governing workload had not been implemented by the Respondent. Of particular concern was the workload associated with marking, with Dr Russell’s evidence being that members were spending far more than one hour per student on that specific task.

Dr Paul Gardner gave evidence of his lengthy academic career and his experience of changes to academic workloads, particularly in the past ten years. It was his evidence that demands on academics’ time had increased without a commensurate increase in workload allocations. Dr Gardner’s further evidence is that in his school – being the School of Education – workloads are managed by a Business Manager and are based on the Faculty Parameters. He states that in response to his requests for additional time, he is told that the Respondent does not permit a variation to workload that departs from the Faculty Parameters.

Dr Gardner gave evidence that in his approximately nine years of service with the Respondent he is unaware of any audit of academic workloads or examination of the actual time taken to perform the required academic tasks. While he concedes there has been a committee established to consider workloads, his evidence is that any outcomes arising from the committee’s deliberations have not been shared with academics.

Ms Younghye Seo Whitney gave evidence that she was engaged by the Respondent as an Associate Lecturer in Korean Studies between 2023 and December 2024. She states that during this time she had little understanding of how workloads were allocated. However, her evidence is that the workload allocations she received – which she believes are based on the Respondent’s initial workload allocation inputs - did not adequately or accurately capture the preparation time for certain required tasks. Ms Whitney’s further evidence is that there was little consultation regarding workload allocations and that when she tried to negotiate increases in allocation to properly reflect the time needed, she was rebuffed.

With respect to marking, Ms Whitney says as follows:

“Marking and assessment were time-intensive responsibilities that extend well beyond simply grading student work. The process included weekly marking requirements, evaluating each of the spoken and written tests at the end of the semester, providing constructive feedback, and ensuring assessments aligned with unit learning outcomes and academic standards.”[12]

It was Ms Whitney’s evidence that the workload allocation from the Respondent did not factor in issues such as students with special needs or extenuating circumstances, which invariably required her to take additional time. She states that she was told that such duties fell within the category of “CAP” on her workload allocation sheet but she was never advised exactly what duties belonged with CAP and which with teaching. I note that the “CAP” category found in the Faculty Parameters[13] does not appear to in any way contemplate these duties but rather a completely different set of tasks.

In its submissions, the Respondent notes that it relies on the principles of interpretation as set out in AMWU v Berri Pty Ltd [2017] 268 IR 285 (Berri) and in James Cook University v Ridd [2020] 278 FCR 566 (James Cook) as follows:

“…the starting point for the construction of an enterprise agreement is a consideration of the ordinary meaning of its words read as a whole and in context – context which can include the agreement as a whole as well as the broader 'industrial context and purpose;'
a purposive approach is to be preferred to a narrow or pedantic approach – on the basis that 'the framers of such documents were likely to be of a "practical bent of mind;"’
the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome – it is always one of interpreting the agreement produced by the parties; and
the common intention of the parties is to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.”[14]

The Respondent submits that the requirements imposed by the relevant clauses of the Agreement require its officers to determine the time to be allocated to perform any defined task in consultation with affected employees but does not require those allocations to be agreed with those employees. It submits that such an interpretation would be inconsistent with the ordinary meaning of consultation and that the accepted approach to consultation is that it does not confer veto rights to the person being consulted nor does it require their agreement.

Further, the Respondent submits that the requirements set out in the relevant clauses to ensure reasonableness and accuracy do not mandate any particular process or mechanism to achieve these outcomes. It notes particularly that there is no requirement for either an evidence- based process or a working group comprising the Applicant and the Respondent.

The Respondent submits that on this basis the FWC should not seek to impose – for example – a working group as part of its ruling as to do so would entail the FWC acting beyond its remit by modifying or contradicting the agreed provisions of the instrument. Further, the Respondent submits that it has in any case complied with all of its obligations under the relevant clauses in the Agreement.

It notes that it has established a Faculty Academic Workload Group (the Workload Group) comprising various senior employees within its ranks. The Workload Group is responsible for maintaining and updating the Faculty Parameters as identified in [15] above. The Respondent states that the time allocations for the various teaching-related activities in the Faculty Parameters are informed by:

“…feedback from the members of the Workload Group (and, through them, all academic staff members in the Faculty);
the standards set by the Tertiary Education Quality and Standards Agency; and
the finite resources available to the Faculty – which require it to make decisions as to how time is best allocated so as to deliver a high standard of education in a sustainable manner.”[15]

The Respondent submits that these matters are considered on a regular basis by the Workload Group as part of an ongoing review which results in new Parameters for each academic year. It further submits that the process of preparation, review and endorsement of the Parameters is consultative and allows an opportunity for all staff to provide feedback which is then considered and applied.

The Respondent says that once the Parameters are endorsed, they are applied by Heads of School (or their delegates) when allocating workloads to individual academic members, which is again a consultative process. It says that the Parameters are made available to all employees and that employees can have input into their own allocation. Further, there is – albeit limited – ability for Heads of School to apply modified versions of the Parameters in individual cases.

The Respondent also says that the Parameters are to be used by Unit and Course Controllers. Specifically, they are to be used to ensure that the programs they deliver are designed to be delivered with the available resources including the times allocated by the Parameters. Reflecting the finite nature of the Respondent’s resources, it says that all employees are made aware of the expectation that they perform their tasks within the times set by the Parameters to allow the Respondent to control how employees spend their time.

The Respondent submits that the process of allocating workloads in a university is complex, and this complexity has been previously recognised by a Full Bench of the FWC which said that academic work is:
“…to a significant degree, self-directed and autonomous. The allocation of face-to-face teaching may be of definite timing and duration. However, other work required of academic staff is of a different nature and not naturally amenable to strict prescription of daily or weekly hours of work.”[16]

The Respondent further submits that this complexity is demonstrated by the witness evidence for the Applicant, where there is an acknowledgment of the diversity of tasks and a lack of consensus on time taken for particular tasks. Given this, the Respondent says that clause 19 must be interpreted in its industrial context and in such a way as to allow it to be applied in a practical and economically viable manner.

The Respondent submits that the Applicant’s position is such that:
“…in order to comply with cl 19, the University must ensure that each academic staff member's workload allocation precisely reflects the time that individual staff member has actually spent on each defined task (notwithstanding the University's expectation that such tasks are completed within the time allocated by the Parameters and the absence of a system of time recording). This would:
(a)be inconsistent with the industrial context in which cl 19 applies (noting the nature of academic work);
(b)result in an unfair, inequitable and opaque workload allocation process that rewards inefficiency – contrary to the requirements of cl 19.2(e);
(c)create considerable administrative complexity for the University and academic staff members; and
(d)make it impossible for the University to adequately and prospectively manage its own resourcing so as to continue to deliver high quality education in a sustainable manner.”[17]

The Respondent submits by inference that such an outcome would be unreasonable and as such this should be a relevant consideration for the FWC in interpreting the Agreement. I note that in support of this proposition the Respondent cites the finding of the Federal Court in Treasury Wine Estates Vintners Limited v Pearson (2019) 268 FCR 12 at [76]. It further submits that the Applicant’s interpretation – if adopted – would disregard the right of the Respondent to manage it employees by requiring them to perform their work with the resources available to them.

Such interpretation would, in the Respondent’s submission, intrude into the area of managerial prerogative and such intrusions should not be embarked upon lightly. In support of this notion the Respondent again looks to case precedent, in this case Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales [1984] 295 CAR 188 (State Rail NSW).

In summary, the Respondent says that the relevant clauses should be interpreted to require that the time allocated to a task is reasonable and an accurate representation of the time taken to perform that task where “representation” has its ordinary meaning of “to serve as an example or specimen of; exemplify.” The Respondent submits that such an interpretation:

“…is not only consistent with the ordinary meaning of those terms but also reflects the industrial context and practical reality. It results in a requirement that would be satisfied through the determination of a reasonable and accurate exemplar time allocation – which is all that is possible for the University to achieve as part of a prospective allocation of work in light of the associated complexities.
This interpretation is also consistent with the use of the words 'will be' (rather than 'is') immediately before the words 'accurate representation,' which reflects the prospective and iterative nature of the assessment.”[18]

Given all of the above, the Respondent says that it has complied with the requirements of the relevant clauses. It says it has developed its Parameters based on a broad range of information including feedback from employees, and the Parameters reflect reasonable and accurate exemplars of the time taken to perform the various tasks. Further, the reasonableness of the Parameters is reflected in the capacity for them to be modified to accommodate individual circumstances and in an environment where employees are expected to perform their work within the time allocated but have access to support if they are unable to do so.

Evidence for the Respondent was given by Professor Richard Blythe (Pro Vice-Chancellor of Humanities), Associate Professor Rebecca Walker (Deputy Pro Vice-Chancellor of Humanities), Associate Professor Kathryn Shine (Deputy Head of the School of Media, Creative Arts and Social Inquiry) and Mr Kevin Ashwood (Business Manager – School of Education).

In his witness statement, Professor Blythe acknowledges that he received a letter from the Applicant outlining that 41 employees had concerns regarding their workloads. However, given the generic nature of that correspondence and the highly individual nature of academic workloads, he states he was unable to provide a proper response and conveyed this to the Applicant.

Professor Blythe’s further evidence is that he subsequently received a letter from the Applicant seeking evidence that the Respondent had met its obligations under the relevant clauses of the Agreement. In response, Professor Blythe sent a further letter to the Applicant, a copy of which was annexed to his witness statement. In that letter, he sets out the process used by the Respondent to develop and implement the Faculty Parameters.

It was Professor Blythe’s further evidence that he had delegated responsibility for the Faculty Parameters to the Workload Group as identified at [40] above. He describes the role of the Workload Group as being the development, maintenance and updating of the Faculty Parameters. With respect to those Faculty Parameters, Professor Blythe says as follows:
“The Parameters provide time-based guidelines within which workload is to be allocated for defined teaching-related activities (e.g. one hour per student for marking; up to 20 hours per unit for unit coordination etc). For most activities, the Parameters identify a range of time allocations, which vary based on (amongst other things) the number of students in a unit and the way teaching is being delivered (e.g. the allocation for consultation ranges from six hours per unit (for a unit with 10 to 30 students) to 24 hours (for a unit with more than 101 students))…
The Workload Group is responsible for ensuring that the time allocated for defined tasks is reasonable having regard to what is required to deliver high-quality teaching that meets the standards set by TEQSA while operating within the resources available to the University.”[19]

Professor Blythe says that the Respondent is, like any organisation, constrained by its level of resources. Given this, it cannot allow employees to determine how much time they wish to spend on various tasks. The Workload Group is therefore tasked with making decisions about how long various tasks should reasonably take, which Professor Blythe says involves looking at the overall resources available and dividing them up among the necessary components.

Professor Blythe gives further evidence that in 2024 the Workload Group received feedback about the time allocated for unit coordination. Having considered this feedback, and notwithstanding that increasing the time for tasks would require extra resources – and thus extra finance – the Respondent agreed to increase the time allocation for unit coordination. Professor Blythe further says that increasing resources is not the only way to address issues. He states that:
“It is also recognised that the time required to perform defined tasks can shift over time, particularly as a result of changes in technology. By way of an example, there are various AI-based solutions that will soon enable staff members to do some tasks much more quickly while maintaining and improving quality, however, AI can also create additional work as staff become familiar with its uses and applications and we ensure that it is not misused by students. It is in recognition of these shifts and the inherent variability of tasks, time and workload that the Workload Group has been set up as an ongoing, consultative body.
It is also important to note that such shifts can be managed in ways other than simply increasing workload allocation. For example, in relation to concerns about time spent by academics managing AI-related misconduct, the University has adapted and updated its approach to meet contextual changes. The Faculty has produced Faculty-specific guidance for staff on these changes.”[20]

In summary, Professor Blythe states that the Respondent requires its Unit and Course Controllers to ensure that they operate within the available resources by paying regard to the Faculty Parameters when designing their programs. Notwithstanding this, he says that there remains flexibility in the Faculty Parameters for Heads of School to allocate resources to acknowledge the particular needs of distinct disciplines. By limiting the flexibility to that provided by the parameters, Professor Blythe says that the Respondent can ensure that workloads are allocated in a fair, equitable and transparent manner across the Faculty.

Under cross examination Professor Blythe was asked whether he had sought any advice from the Respondent’s HR function with respect to implementing the requirements of the two new clauses being 19.2 (e) and (f). He conceded that he had not done so but offered that the Respondent had instead formed the Workload Group. It was put to Professor Blythe that the changed – and new - words in the Agreement created a changed obligation but his expressed view was that it did not substantially change the obligation. He stated that the change did not fundamentally re-direct the workload allocation process nor did it create a new process but rather was simply a further articulation of the process already in place.

Professor Blythe was further asked about the role of the Workload Group in setting times for tasks. It was put to him that the Workload Group was focused on what was reasonable as opposed to what was accurate. Professor Blythe answered that he took the Workload Group to be engaged in determining what they thought an accurate representation of the timing would be. It was then put to him that this was not consistent with the requirements of the relevant clauses. The Professor suggested that what had been done was to establish a reasonable time for completing the task. The question was then essentially re-phrased to suggest that the job was not about reasonableness but about accuracy.

To this question Professor Blythe replied that establishing exact times was difficult given the nature of some of the tasks, which were by their nature quite variable in terms of requirements and time taken. It was Professor Blythe’s view that with many tasks it was impossible to determine the time taken with 100% accuracy and gave marking of assignments as an example. At this point I asked Professor Blythe to explain how the Respondent then came to make precise calls on certain tasks, citing the unchallenged evidence from Dr Rich about a 2000-word assignment in his unit, which had – for sessional academics marking those papers – a time limit of 30 minutes.

His response was that the Respondent was drawing on the experience of numerous academics over multiple fields of study who had in some cases marked such papers themselves. It was his view that in any case such a process needed to be iterative and relied on feedback from employees. Further, there needed to be a recognition from Course and Unit Controllers that they need to avoid creating assessments that were, to use his phrase, “overly burdensome”. He also noted that potential over-assessment – when measured against learning objectives - could be a problem creating an inability to complete marking within the times set down in the Faculty Parameters.

In terms of remedies to these problems Professor Blythe gave suggestions about automated quizzes and the use of multiple-choice tests in combination with other forms of assessment to achieve satisfactory outcomes. I then put to Professor Blythe the following two propositions with respect to marking. Proposition one: if ten academics are all given the same paper it will not take the exact same time for all ten to mark the paper. Proposition two: if one academic is given ten different papers, it will not take that person the exact same time to mark each one. Professor Blythe replied that he did not take the position such that he would refute those propositions. However, I suggested to him that this was system under which the Respondent was actually operating. His response was that essentially the system used by the Respondent was working on averages, which was one of the only practical methods of making the assessment.

I then put a further question to Professor Blythe regarding the reality of marking. Specifically, I asked what an academic – allocated 30 minutes to mark a paper – did if they found at the thirty-minute mark they had not completed the task. The Professor suggested that the academic should have a conversation with the academic team about the appropriateness of that assessment task in relation to the resources available to do the assessments. The next step would then be to explore other assessment options.

Later in cross-examination Professor Blythe was taken by the Applicant to the results of a survey conducted by the Respondent in 2021[21] which showed that less than 40% of academics said their workload was manageable. Arising from this, the Applicant queried Professor Blythe about the process used to determine timings for tasks, asking if the Workload Group used their own experience as a guide. Professor Blythe stated that the Workload Group drew on their own experiences, the experiences of other academics in the Faculty, benchmarks from other institutions. The Applicant queried whether this included any sort of time and motion study and Professor Blythe confirmed that it did not.

When asked if there were any other objective measures used Professor Blythe cited people’s experience drawn for decades of academic work. The Applicant suggested that this was not objective but rather subjective, but Professor Blythe demurred and proposed that using such experience was an objective measure.

Drawing from this I queried Professor Blythe about the fact that the one hour for marking – for example – appeared to be common across the Faculty wherein it could be found that different types of disciplines lent themselves to different types and timings of assessments. The Professor agreed that this was so but suggested that the Faculty Parameters could be adjusted to suit. I made the point that in doing so they were all starting from an assumption of one hour, but he again proposed that variations could be made.

The Application asked Professor Blythe if the Workload Group had ever undertaken a formal structured survey of staff with respect to the Faculty Parameters and whether they were accurate. Professor Blythe advised that no such survey had been conducted. When asked if there was a formal feedback mechanism it was clear from Professor Blythe’s answer that while there was no such formal mechanism, feedback was provided and such feedback was welcomed.

The Applicant then asked Professor Blythe about the official record of the Workload Group’s deliberations, proposing that it had not produced any written evidence of what it was doing or the investigations it had undertaken. Professor Blythe responded that the Workload Group was not a formal committee of the Respondent and as such did not produce reports or minutes.

The Applicant further put to Professor Blythe that the Respondent had taken the approach of fitting the task to the budget, rather than the budget to the task. The Professor agreed that the Respondent was faced with finite available resources but did not completely concede the point, stating that the Respondent faced a challenge to deliver the outcomes with the resources available. The Applicant countered that if the Respondent was allocating time on the basis of what it could afford, it ran the risk of being in breach of cl.19.2(f) of the Agreement because the time would not be accurate. Professor Blythe explained that there were a number of requirements for the Respondent to meet and balancing them was subject to constant tension.

When pressed on the issue of the timing nevertheless not being an accurate representation, Professor Blythe stated that in his view the timings were accurate, understood in the context of the type of work under consideration and given the experience of the people who were making the calls on that timing. The final question from the Applicant was with respect to allocations for dealing with AI-related misconduct. From Professor Blythe’s answer it appeared that the Respondent was aware of the issue and had made some ad hoc changes, but the issue was not completely resolved and there was no set allocation in the Faculty Parameters.

In her evidence, Associate Professor Walker provides details of a 2023 project instigated by the Faculty of Humanities which had as one of its priorities to ensure that workloads were implemented in a fair, equitable and transparent manner. It was as part of this project that the Workload Group was established. Professor Walker’s evidence is that she is a member of the Workload Group and brings to that membership experience in teaching and allocating workloads within the School of Education.

Professor Walker says that in 2023 the Workload Group reviewed and revised the existing Faculty Parameters which had to that point been applied differently across different Schools within the Faculty. Emerging from the review and revision was the 2024 version of the Faculty Parameters. Professor Walker says that the Faculty Parameters were prepared having regard to:

“…general guidelines from the University (the University Parameters), which set ranges of time allocation for various tasks (with the 2024 Parameters adopting allocations within those ranges having regard to the work being performed within the Faculty). The University Parameters provide a starting point but are not determinative.
the Curtin University Enterprise Bargaining Agreement 2022-2025 (the Enterprise Agreement).
the Academic Workload Allocation Procedures.
the following design principles that were developed by the Workload Group: equitable and fair allocations, financially sustainable (aligned to budgets), data driven (e.g. financial data, unit offering data, student enrolments etc), easily interpreted, and consistent application.
the direct experience of the members of the Workload Group (who, as above, had considerable experience in managing both their own workloads and that of others) as well as feedback provided to those members by other staff.
consultation with key staff in each of the Schools (e.g. discussions with learning and teaching staff regarding appropriate time allocations for tasks).
input from other groups within the University – for example, there is ongoing work within the Faculty's Office of Learning and Teaching to understand how staff teach in online environments and how this impacts on their workloads.
the resources (financial and personnel) available to the University.”[22]

Professor Walker states that the Parameters were then sent for endorsement and by the time they were implemented they had been reviewed by around 25 different people. She says the process was repeated again in 2024, taking in feedback from various meetings with staff, feedback from senior members of Faculty and using benchmarking against another Faculty being Business and Law. As a result of this process changes were made to the allocations for unit coordination in 2025.

It is Professor Walker’s evidence that the Workload group meets four to five times a year to discuss issues such as workload allocation and its members make themselves available for feedback from the various Schools in the Faculty. She gave further evidence that the process followed by the Workload Group ensures the time allocated to perform defined tasks is reasonable and accurate for the generalised resourcing of units.

Professor Walker states that with respect to the Parameters developed by the Workload Group,
“It is important to note that the Parameters identify representative time allocations for defined tasks across a unit. They are not intended to be applied on a granular level. For example, while the Parameters generally allocate one hour for marking per student, this is intended as an average across the unit. This takes into account that staff members usually increase their speed as they mark (as they may develop some standard comments) but also that some students' work will take longer to mark and others' will take less time.”[23]

Professor Walker’s evidence is that the Parameters are guidelines as opposed to rules. She says that the Heads of School may still make adjustments to workload where appropriate to meet the strategic and operational needs of the School but that such adjustments are usually made in consultation with the faculty to ensure fairness and equity across the Schools.

With respect to how the process plays out at the individual level, Professor Walker describes the process as follows:
“The workload allocation process typically begins prior to November. This enables workloads to be set concurrently with timetabling for the following year.
The first step in this process is for the individual within each School with responsibility for allocating workloads (usually the Deputy Head of School) to prepare draft workloads and send these to each academic staff member for comment. These draft workloads are informed by the 'career conversations' held previously in the year and other consultation processes as part of which staff members may identify:
the units they would like to be involved in for the following year;
a desire for a higher research allocation (e.g. due to receiving a research grant);
a desire for a higher ISoLT allocation; and/or
a need for a 'unit development' allocation (e.g. if they consider that they will need to spend time rejuvenating an existing unit).
Once draft workloads have been provided, the staff members are given an opportunity to provide feedback and negotiate their workload. This could include: asking for more time to be allocated for research/ISoLT, asking to teach a different unit, allocation of more time to a learning and teaching/leadership activity or asking for certain duties to be re-allocated to others (e.g. casual academic staff).
There can be significant back-and-forth between staff members and the Deputy Heads of School/School Business Manager/Head of School/other workload allocator about workload to re- allocate work within the parameters set by the Enterprise Agreement, the Faculty and the University Parameters.
Once a workload is agreed between a staff member and the relevant workload allocator, it will be inputted into AWMS. The AWMS assists in allocating workloads by automatically drawing information from various sources within the University (including historic enrolments and data in relation to HDRs (i.e. higher degrees by research)). It also flags any workloads that are inconsistent with the requirements of the Enterprise Agreement so that these can be identified and rectified.
The draft workloads in AWMS are submitted to multiple levels of review, namely:
a review by Deputy Heads of School, School Business Manager, the Academic Workload Manager and me of each staff member's workload allocation to ensure that it accurately reflects that staff member's workload;
a review by the Heads of School and School Business Managers to ensure that the workload allocated to each staff member is fair and accurate and that everyone is at or below 100%;

a review by the PVC and General Manager to ensure that workloads are fair, accurate and reasonable both at an individual level and across the Schools;
a high-level overall review by the University Provost and Associate Provost to ensure fairness, that overall allocations are reasonable and that everyone is at or below 100%.”[24]

Professor Walker also says that there are at least three avenues for employees to appeal their workloads but that it is her experience that most issues with workload allocations are generally resolved at the school level. In addition, there are options for employees to receive additional support to assist them in meeting the requirements of their roles within the Parameters.

Under cross-examination Professor Walker was taken to the workload clause in the 2017 Agreement and it was contrasted with the relevant clauses in the Agreement. The Professor was asked about the new requirement to ensure that the time allocated was an accurate representation of the time taken. The Professor offered the view that the practice had always been to make sure the time allocated was reasonable and accurate. However, she conceded that the faculty working group (which creates the Faculty Parameters and is distinct from the Workload Group) which was considering workload at the time the Agreement took effect did not take any direct advice from HR or legal as to how to apply the new parameters. Notwithstanding this, Professor Walker stated that the working group was aware of the new clauses.

In further cross-examination, Professor Walker was asked about the process for setting the faculty Parameters and the concept of consulting with staff. In particular, she was asked if the staff had ever been issued with a survey on workloads and the Professor conceded that they had not. She claimed there were other methods used to gain feedback such as open-door meetings, whole of school meetings and information from Deans who consulted with staff. When asked what consultations the working group has undertaken to ensure times were accurate, Professor Walker’s response was that the working group had spoken to Deans and directors and received feedback from people on the Workload Group. When asked if they had consulted staff Professor Walker stated that they had done so through the open-door meetings and “whole of school” meetings.

Professor Walker was also queried about some feedback that had been received around unit coordination. She conceded that in one instance the time allocation had been decreased. The Professor was then asked how the employee could do the same amount of work with less time available. Professor Walker stated that in fact the task requirement had been decreased, citing the example of the removal of the need to update learning materials. Professor Walker further stated that the issue of unit coordination was the only example that she was aware of where feedback had been received about the Faculty Parameters. She further stated that the working group dealt with feedback by raising it verbally at meetings, which were not minuted.

Professor Walker was also cross-examined about the notion that there was some disquiet about workloads amongst staff. The Professor appeared loathe to concede the point. She repeated her assertion that feedback had been sought and taken into account and noted that it was important for the Respondent to ensure viability in its programs. Her evidence was that the Respondent would accept feedback and look for ways to support staff through other methods.

Professor Walker was then taken to the Faculty Parameters themselves and particularly the time allocated for marking. The Professor conceded that the figure of one hour had existed prior to the Agreement being approved and that there had not been a review after the approval was confirmed. The Professor was then asked about the 2024 review of the Faculty Parameters, which took place after the Agreement was approved. She was asked how the figure of one hour for marking was determined to be an accurate reflection of the time taken. The Professor said that it was via feedback and the experience of the Workload group. She further stated that advice was provided that where there were difficulties in completing marking in the time frame of one hour, then time allowances could be given to allow the assessments to be re-written.

It was put to Professor Walker that the notion of accurate really meant an average. Professor Walker stated that it was not a “one to one exact allocation”. She conceded that with marking and the timing of one hour, some employees might take more time, and some may take less time. Her evidence was that it was an accurate allocation “on the whole” as opposed to “one on one”. The Professor was then asked if requiring the academics to tailor their assessments so that they would only require a one hour marking period was a reversing of the Respondent’s obligation to ensure timings were accurate. Professor Walker disagreed, suggesting that the Respondent’s assessment policy required assessments to be manageable for the students and for the institution. In terms of manageability for the institution, Professor Walker stressed the need for the Respondent’s programs to be viable in light of finite resources.

The issue of the marking time continued to be pursued, with Professor Walker being asked about the mechanism for dealing with an under-allocation of time for marking. The Professor suggested that the matter should go to the Workload Group for discussion with the leadership of the faculty. However, she stressed that the Respondent had “finite resources and we need to ensure the viability of our programs across the whole. So that would need to be a consideration as well.”[25]

Professor Walker was also asked about the impact of AI. It was her evidence that academics had always been tasked with dealing with potential plagiarism and other student issues and that AI was merely another iteration of this. It was put to the Professor that AI was a different process, but she stated that she regarded it as being similar to other forms of academic integrity. When asked if there had been feedback given to the working group about the time taken to perform integrity checks, the Professor conceded that there had not, but she stated that she had received some feedback personally. The Professor was asked whether the working group was looking at this issue to determine the accurate time taken to complete the task. The Professor did not answer the question directly but suggested that if extra time was required the Head of School would allocate more time to the Unit Coordinator.

The Applicant also asked Professor Walker about the number of times requests for additional time were made. It appeared from her answer that there was no official record kept of this, but rather that anecdotal evidence was given to the working group and the Workload group by various heads of school. Her evidence was that such evidence was then discussed, and decisions made by the groups which would then be conveyed to the heads of school.

Associate Professor Shine gave evidence about her own experience of allocating workloads within her School. She explains that she is guided by the Faculty Parameters in undertaking this task but that there is a level of flexibility within the parameters albeit that they are relatively prescriptive. Professor Shine’s evidence is that she sends prepared draft workloads to each academic and asks them to review the draft. She says that the academics are tasked with indicating where their workload can be increased – or decreased – to bring their workload as close to 100% without going over this figure, which appears to be a “hard limit”.

Finally, Professor Walker was asked what changes had been made to the Faculty Parameters after approval of the Agreement. The Professor noted the unit coordination change, the addition of short form learning, HDR allocations for persons undertaking higher degrees by research and the addition of intensive units.

Professor Shine says that the outcome of this process is an agreed workload allocation that is still regarded as a “work in progress” as there may need to be further amendments to accommodate changed circumstances throughout the year. It was Professor Shine’s further evidence that she believed the process to be as consultative as possible and allowed staff to both select their units and also to negotiate the actual work to be performed in those units.

With respect to the Faculty Parameters, Professor Shine again notes that they are relatively prescriptive, but states that:
“We advise staff to align their expectations and work with the allocations. For example, we advise staff to devise assignments that they can reasonably mark within the one hour allocated by the Parameters for marking. I communicate this in conversations with staff about workloads and it is also communicated by the Head of School during events such as School Forums.”[26]

Professor Shine also states that she is a member of the Workload Group and confirms that the Group provides feedback to the Deputy Pro-Vice Chancellor, including feedback from staff members. She further confirms that the Group has considered the issue of time for unit coordination and based on the feedback and their assessment has increased the allocation of time for this task.

Under cross-examination, Professor Shine explained that her understanding of the Workload Group was that it was to review the Faculty Parameters rather than set them. She further confirmed that her recollection was that unit coordination was the only parameter that had been amended in her time on the Workload Group. Professor Shine advised that she was unaware of how the time allocated to marking came to be one hour as the decision had pre-dated her involvement in the process. The Professor was uncertain when asked about any mooted changes to the marking entitlement, stating that it may have been discussed but she could not remember.

However, it was Professor Shine’s evidence that academics had raised the issue of marking time with her and that she had subsequently raised it with the Workload Group. She also conceded that academics had raised preparation time with her as being an issue and that she had also raised that with the Workload Group, although her evidence was that the matter was not addressed by the Group.

When asked about the Workload Group’s practices Professor Shine’s evidence was that the Group had not tried to empirically verify any of the timings set for tasks, offering her view that these things had already been decided by the time of her arrival. She confirmed that there had been no other investigations – such as time studies or examination of workload diaries – to assess the veracity of the time allocations. Professor Shine did not know whether there had been any advice from HR or Legal to the Workload Group with respect to the changes made by the Agreement but conceded that she had not received such advice in her capacity as Deputy Head of School. Professor Shine agreed that the members of the Workload group tended to bring anecdotal information to the group which was then discussed but was unaware of whether any records of these discussions were kept.

With respect to AI related misconduct, Professor Shine agreed that such activities were taking an increasing amount of time, but she regarded such time as being part of the consultation process for unit coordinators. As such, she regarded that change to unit coordination times as being – in part – a way of addressing the issue. She also gave evidence that in the four or five cases where employees had sought extra time for tasks this extra time had been granted. However, she also agreed that when the issue of marking arose it was common to refer an academic for assistance in amending their assessments so that the time taken for marking fell within the allotted time. Under further questioning, Professor Shine conceded that workload issues had been an issue for some time.

The evidence of Mr Ashwood went mainly to the process of preparing draft workloads and supported the evidence of Professor Walker as set out at [64] above. In addition, Mr Ashwood gives more detailed evidence about the consultation process with employees. He explains the process as follows:

“Once the initial draft is received, we generally receive a wide range of feedback from staff members in relation to their draft workloads. This includes feedback regarding their allocated teaching periods; the time allocated to perform particular tasks; the time allocated for leadership roles; shifts of the mode of teaching assigned (e.g. online or in person); and requests to change units.
Upon receipt of this feedback, I work with staff members, their Line Managers and the Head of School to address it. It is at this stage of the process that considerable flexibility can be applied. By way of an example, if a staff member provides feedback that the time allocated for a particular task is insufficient, we will work with them to first consider the perceived issue and whether it is with the allocated time or the functions being performed.
By way of an example, if the concern relates to marking, we would ask how the assessments in their unit could be re-designed to enable marking to be completed within the time allocated by the (Parameters).”[27]

Mr Ashwood says that following the review, additional time can be allocated if deemed appropriate albeit that this would generally be accompanied by a review to identify ways to complete the task(s) within the Parameters. He notes however that time allocations not conforming with the Parameters need to be signed off by the Head of School.

Mr Ashwood further says that the consultation process is an opportunity for employees to identify work preferences and gives an example whereby an employee might seek to avoid marking and have that task instead performed by casual employees. He also says that the Respondent consistently reminds staff to come forward if they require any variations from the initial workload allocation as a result of changed circumstances including circumstances where the initial expectation proves to be incorrect.

Further to this, Mr Ashwood says that the Respondent regularly receives such requests from employees and his evidence is that in his School in 2024, only two of 56 staff members had no change to their workload allocation throughout the year. In addition to this, He says that the Respondent itself initiates reviews during the year, the most notable being at the census date – the date where student numbers are considered final – in each semester.

Mr Ashwood also gives evidence that he is a member of the Workload Group as identified at [40] above. His evidence with respect to the operations of the Workload Group essentially mirrors that of Professor Walker.

Under cross-examination Mr Ashwood stated that he felt comfortable dealing with errors and minor variations in workload but deferred to the Head or Deputy Head of School for substantial variations. As a member of the Workload Group, he confirmed that the group had not received any explicit advice dealing with how to implement the new words in clauses 19.2(e) and (f). However, he gave evidence that in his School the process was centered around facilitating two-way communication with employees to get concerns raised and addressed.

When asked if the Workload group sourced any direct advice on what it might need to do to ensure that the time allocated to tasks is reasonable and accurate, Mr Ashwood referred to feedback received from staff – for example with respect to the unit coordination timing issue. When pressed about advice from HR or from Legal, Mr Ashwood conceded that he personally had not received any such advice.

Mr Ashwood was further asked about Workload Group’s approach to – and understanding of – the notion of accurate representation of time taken to complete a task. Mr Ashwood’s evidence was that the Faculty Parameters set a baseline and each of the schools then had a degree of autonomy to make changes to reflect the reality of their operations, and that this ability to deviate was how cls.19.2(e) and (f) were satisfied. Mr Ashwood was then asked what would happen if it was identified that the Faculty Parameters did not provide sufficient time to perform a task. His evidence was that where a staff member presented a reasonable case that additional hours were needed, the Head of School could use their autonomy to make changes. Mr Ashwood cited an example of this happening with students on placements, where unit coordinators needed and were given extra time.

Mr Ashwood confirmed what earlier witnesses had said about the keeping of records of concerns raised. He stated that data was not recorded but was aware that over 500 workload variations were undertaken in 2024. When pressed, he advised that the changes did not always mean extra time was allocated but gave examples of other changes that could be made to address the issue. He later confirmed that a good number of these changes were changes in location – for example from in person to online – and to remove marking from the academic’s list of duties. With respect to staff feedback, Mr Ashwood confirmed that the feedback sought was more to do with the individual employee’s workload rather than feedback about the Faculty Parameters themselves.

Mr Ashwood was then specifically asked about marking, and how the Respondent came up with the figure of one hour for marking. Mr Ashwood described the one hour as a Respondent-wide guideline. Where staff claimed that one hour was insufficient time, the Workload Group would look at the assessments themselves to determine whether they could be adjusted. He also stated that a solution used was to remove marking from the workload and pass it to casual employees. Overall, Mr Ashwood said that he did not recall many employees raising the issue of marking as a time issue. When pressed on the steps taken by the Workload Group, Mr Ashwood stated that they relied on the baseline, and it was up to the schools to ensure that the figure of an hour was fair and reasonable.

Mr Ashwood was also asked about allocation of time for AI related student misconduct. He provided a view of how he believed such time would fit into the time allocation for a unit, but it appeared that in his own mind the matter was potentially unresolved as to who would deal with it and as part of what duty allocation.[28]

Mr Ashwood was questioned about the process for collecting data on the number of requests made and the recording process used by the Workload Group. He conceded that no minutes or records were kept of requests or changes made, nor was it discussed in meetings as to how many academics were making requests for extra time. He also conceded that marking had been raised as an issue of concern albeit not with respect to his particular school.

The Applicant then asked Mr Ashwood if he thought that the individual academics should be redesigning their programs and work to fit within the parameters. It was Mr Ashwood’s personal view that the process was a two-way collaboration and needed to be given the sheer number of units provided by the school. Mr Ashwood also confirmed that when proposals for change are under examination, the financial implications of that change are part of the consideration.

In its reply submissions, the Applicant took the view that the Respondent’s concerns about requiring agreement – see [37] above - were irrelevant and noted that it was not suggesting that agreement was required. The Applicant, citing the findings in University of the Sunshine Coast v National Tertiary Education Industry Union, also took issue with the Respondent’s view – see [38] above – that no particular process was mandated or required for establishing accurate timings. I note that in that case, Commissioner Simpson found as follows:
“The difficulty with the USC approach is that it fails to give work to the words “The workload model will accurately reflect the time taken to do the work.” These are words inserted into the Agreement for the first time. Importantly it is the model described in clause 8.2.2(f), and not the entire process required by clause 8.2.2 that is required to accurately reflect the (median) time taken to do the work. Whilst the parties did not prescribe in the Agreement the method by which the quantitative standards would be “developed”, it is implicit that some methodology is required to arrive at standards that “..accurately reflect the time taken to do the work.” The methodology adopted to this point has failed.”[29]

The Applicant proposed that the FWC following the Applicant’s proposed method of resolution was both within its power and also an appropriate way to deal with bringing the Respondent into compliance with cls19.2(e) and (f). The Applicant rejected the Respondent’s method of dealing with those clauses, submitting that the Respondent’s effective interpretation does not give the words requiring accuracy any work to do. This appears to draw upon the findings of Commissioner Simpson set out at [110] above.

The Applicant submits that the requirement is clear – it needs to be accurate in an empirical sense – it is not a matter of estimates, assumptions, or managerial expectations. The Applicant rejects what it says is the Respondent’s contention that it may rely on the experience of particular persons, unspecified and anecdotal feedback and other financial and data points as found in the witness statement of Professor Walker.

The Applicant submits that it has provided clear evidence that academic staff do not regard the Faculty Parameters as being accurate and that they underestimate the time needed to perform various tasks. The Applicant also takes issue with what it says is the Respondent’s assertion that the Applicant is requiring that it establishes the precise time taken by each academic to perform particular tasks. The Applicant states that its submission is:

“…that compliance with clauses 19.2(e) and 19.2(f) requires that Curtin undertake sufficient enquires to objectively determine a reasonable standard for how long each defined duty takes to perform. That standard must reflect how long the task would ordinarily take an average academic to complete—not how long management expects it to take, nor how quickly an individual might perform it under pressure. Without such an objective foundation, the time allocated cannot properly be described as ‘accurate’ as required by the Agreement.”[30]

The Applicant agrees with the Respondent that the word “representation” in clause 19.2(f) should be given its ordinary meaning of “to exemplify or serve as an example”. However, the phrase “accurate representation” should be read as a whole and given practical effect, meaning that the timings should genuinely reflect, on average, the actual time taken. The Applicant also takes issue with what it identifies as a compounding problem, being that the Respondent routinely uses the lowest end of the scale where there is a range of time available for a task. It further submits that the Respondent suggests that its model allows for variation but in practice it either does not do so or only does so in limited circumstances. The Applicant says that such a system does not meet the requirement to provide reasonable timings that are an accurate representation.

The Applicant also rejects the notion that its position disregards the right of the Respondent to manage its employees. Citing case precedent, the Applicant notes that managerial prerogative is subject to legal constraints and must be exercised consistently with obligations under an enterprise agreement.[31] As such, the Respondent must act in a way that recognises the workload allocation parameters in cls19.2(e) and (f). The Applicant submits that by the Respondent insisting that employees complete their tasks within the set times, the Respondent is effectively reversing the onus and in doing so neutering the protections established by the clauses. Further, the Applicant submits that the Respondent’s practice of privileging economic viability over express terms of an industrial instrument is inconsistent with the established principles of interpretation.

Closing Submissions

Given the volume of witness evidence to be examined, I gave the parties the opportunity to provide written closing submissions. In its closing submissions, the Applicant summed up what it saw as the task for the FWC as follows:

“The task of the Commission is to interpret the Agreement and determine whether the Respondent has acted consistently with its binding obligations under the Agreement. This is not a dispute about whether some individuals may be able to negotiate different, more accurate allocations, at the discretion of management. Rather, the dispute is about whether the Respondent’s current primary workload allocation process, based on the Faculty of Humanities Workload Allocation Parameters (Faculty Parameters), meets the obligations of the Agreement.”[32]

The Applicant submitted that the provisions found in cls19.2(e) and (f) of the Agreement represented a sought-after improvement in the way the Respondent deals with workload issues. Consistent with this, it submits that employees would have an expectation that the Respondent would implement improvements to its processes for such allocation. Notwithstanding this, the Applicant says that Professor Blythe, while acknowledging new language, nevertheless sought no professional advice about giving effect to the new clauses and indeed gave evidence that he did not think the changes required a fundamental change to the Respondent’s process.

Further to this, the Applicant notes that Professor Blythe was unable to identify any changes made in response to the approval of the Agreement and the consequent operation of the new clauses. The Applicant says that any suggestion that there are no systemic issues with workload allocation sits uncomfortably with 41 staff members being part of a formal dispute, and a 2022 survey showing less than 40% of staff members considered their workload to be manageable.

The Applicant submits that the Respondent’s approach to the new clauses and its failure to properly engage with them leads to a conclusion that no effective steps have been taken to implement the changes contemplated by those clauses. The Applicant does not accept that the Workload Group has taken on that task, as its members have a confused and inconsistent understanding of its role, and it appears to operate subject to the Faculty Parameters. The Applicant further submits that the Workload Group operates on the basis of how much time a task reasonably takes, rather than assessing if the time allocated is accurate. This, submits the Applicant, is not consistent with the requirements of cl.19(2)(f) which speaks to accuracy rather than opinion on how long something should take to perform. The Applicant further submits that compliance with cl.19(2)(f) cannot be achieved without first accurately determining how long a task actually takes and a failure to address the baseline figures in the faculty Parameters leaves the matter essentially at the discretion of managers.

The Applicant further submits that the Workload Group, while relying on the Faculty Parameters, has not undertaken any formal or comprehensive review of those parameters to determine their validity. Nor has the Workload Group undertaken any widespread or formal survey of employees, relying instead on anecdotal feedback from managerial employees. The Applicant also submits that the Workload Group keeps no records of its deliberations or – for example – how often it grants or recommends increases to time allocations. Further, its members were unable to explain how the Faculty Parameters had been determined or justified.

With respect to the Respondent’s adoption of feedback, the Applicant submits that evidence from its witnesses show that they have given feedback, that feedback has been provided by virtue of the 41 named academics in the complaint and by 26 academics in the School of Design and Built Environment raising concerns, including with the Chair of the Workload Group. Given this, the Applicant submits that the Respondent’s professed lack of understanding of issues and feedback should be treated with caution. In summary, the Applicant submits that the Workload Group has failed to make any meaningful attempt to address the Faculty Parameters in light of the new workload clauses in the Agreement.

The Applicant also takes issue in its submission with what it believes is an emphasis from the Respondent on the individual nature of the requirements in the workload clauses. While the Applicant concedes the Respondent produced evidence that changes are made to workloads, it claims this occurred after individual consultations and the changes made were largely administrative in nature, as opposed to substantive changes to address time shortfalls. The Applicant concedes the need for flexibility in allocation, but submits that:

“…flexibility must be exercised within a framework that complies with the Agreement. Any individual negotiation that takes place cannot be disentangled from the underlying system whose industrial purpose is to provide meaningful limits in industrial circumstances where “conventional hours of work and overtime provisions are not well-suited".”[33]

The Applicant submitted[34] that a number of witnesses had given evidence that in their particular cases, no discretion had been applied and the Faculty Parameters had thus been applied as per their terms. The Applicant submits that where such Parameters are not accurate or reasonable, the Respondent simply cannot rely on individual management discretion to remedy the problem.

With respect to the particular issue of marking, the Applicant submits that the evidence shows that the time allocated in the Faculty Parameters is not regarded by academics as accurate or consistent with their need to maintain academic standards set by both the Respondent and the Tertiary Education Quality and Standards Agency (TEQSA). The Applicant points to the evidence given by both Dr Rich and Dr Babb in this respect. It further notes that the Respondent led no objective evidence to explain how the one-hour figure was derived but merely suggested that it relied on the experience of those in – for example – the Workload Group.

It is for this reason that I am not inclined to the view espoused by the Respondent that the clause should be held to be subject to the requirement that its implementation should not place any strain on practicality and economic viability. With respect, this argument appears to say to the FWC that it should – on the basis of its own assessment of such evidence as is available – interpret all clauses such that they pose no threat to economic viability. To this I make two responses. Firstly, the need to ensure that the terms of an agreement are economically viable falls to the employer’s negotiators. Secondly and relatedly, it cannot fall to the FWC to interpret an agreement in such a way as the specific and clear wording must be subject to a caveat that is not expressly provided. This would appear to me to be re-interpreting the agreement to say what the Respondent wishes it to say with the benefit of hindsight.

I note the Respondent’s submissions with respect to managerial prerogative and the caution that should be taken in interfering with that right. In response, I make some quick observations. The Respondent submits – see [48] – suggests that adopting the Applicant’s view would disregard the right of the Respondent to manage its employees by requiring them to perform their work with the resources available to them. In the first instance I would note that requiring an employee to perform work with insufficient resources would be putting the employer into grave danger as far as psychosocial health is concerned. Secondly, noting the Respondent’s appeal to managerial prerogative as found in State Rail, I am inclined to consider the full quote as follows (with my emphasis), where the finding is that the tribunal:

“…should examine all the facts and not to seek to interfere with the right of the employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”[41]

At issue in this case is essentially whether or not employees are getting sufficient resources to do their job, with the obvious conclusion that insufficient resources risks excessive workload which then poses a risk to their psychosocial health. The issue is examined in the light of the Respondent agreeing to a clause which appears to me to be a clear protection against such risks. As such, in my view the exhortation against interference with managerial prerogative should not be taken as a barrier to action.

Further, I am satisfied that the new workload clauses are quite clear as to what is required and that is that the time allocated to a task should be an accurate representation of the time needed to complete the task. While the Respondent seeks to suggest that there is something to be made of the use of “will be” rather than “is” I am not persuaded that there is much to be made of this. Clearly, the intention of the clause is that the time allocated a task is, or will be, a sufficient amount of time for the academic to complete the task. That is not to say that the process ought be static – in that once established it can never change. However, clearly there is an imperative for the timing to be accurate.

What then should be made of the Respondent’s arguments with respect to its Faculty Parameters, the way they are set, the way they are applied, and whether the Respondent is in fact compliant with the requirements of the workload clauses? In the first instance, I note that the Respondent has some issues with an examination of the Faculty Parameters. It seeks to make an argument that it is being taken to task over instruments that are not mentioned in the Agreement itself, which does not in fact mandate any particular process for achieving compliance. That there is no mandated process is clearly correct. However, the Faculty Parameters are the actual principles used by the Respondent in practice to set timings for various tasks. They are therefore completely relevant to the issue of whether the Respondent is meeting its obligations. Clearly, if the Faculty Parameters are not accurate, then the allocations – at least initially - will not be accurate.

Which leaves open the Faculty Parameters themselves, and how they are or were derived. In this line of inquiry, I note a disconnect between the submissions of the Respondent and the evidence of its witnesses. The Respondent – at [135] – submits that once the Faculty Parameters are developed by the Workload Group and endorsed by the Faculty Leadership team, they are applied at the schools to the individual employees. However, the evidence from members of the Workload Group is clear that they did not develop the Faculty Parameters.

For example, Professor Shine at [94] states that her understanding of the Workload Group was that it was to review the Faculty Parameters rather than set them. Professor Walker at [84] concedes that the Faculty Parameter of one hour for marking had existed prior to the Agreement being approved and that there had not been a review after the approval was confirmed. Mr Ashwood, when specifically asked about marking, and how the Respondent came up with the figure of one hour for marking, described the one hour as a Respondent-wide guideline – see [107].

While I accept that the Workload Group may review the Faculty Parameters, its operation seems to function by way of assuming the Faculty Parameters are correct, and only addressing such issues as are directly raised to them. I note in particular the evidence of Mr Ashwood noted at [107] with respect to marking where he was asked about the approach of the Workload Group and stated that they relied on the baseline and it was up to the schools to ensure that the figure of an hour was fair and reasonable.

Further, it appears to me that the Workload Group has not tried in any way to objectively verify the Faculty Parameters. For example, when asked about the Workload Group’s practices Professor Shine’s evidence – see [96] - was that the Group had not tried to empirically verify any of the timings set for tasks.

Instead, the Workload Group relies on anecdotal feedback from various sources. Mr Ashwood - see [104] - when asked if the Workload group sourced any direct advice on what it might need to do to ensure that the time allocated to tasks is reasonable and accurate, referred to feedback received from staff. It was characteristic of the evidence of all of the Respondent’s witnesses that they relied on informal and anecdotal feedback as a means of identifying potential problems. It was also the case that they agreed that the Workload Group was an informal body and as such did not keep minutes or records of its deliberations. Further, there had been no Respondent-wide survey of employees about the specific issue of workload allocations and the time allocated to various tasks.

The Respondent regards this as fulfilling its consultation requirements. I agree with the Respondent that consultation does not mean agreement must be achieved and that employees do not get the right of veto. However, I am not convinced that the process used, with its anecdotal and ad-hoc approach underpinned by Faculty Parameters that at least some people regard as largely sacrosanct, meets all of the requirements of the workload clauses. In my view it does not in any way dispose of the requirement for accuracy.

It seems clear to me that there has been no systematic and objective process for reviewing the times taken to perform tasks. Arising from this I will deal with two areas that I regard as problematic. The first is the impact of AI-related academic misconduct. It was clear from the witnesses for the Applicant that this was an issue that was increasing in prevalence and taking more and more time to deal with appropriately and through the processes required by the Respondent. Nevertheless, the Respondent’s witnesses were inconsistent in their stated understanding of where the time for this duty might be found and it appears to me that there is in fact no specific time provided for this particular task. This position receives support from the evidence given by Professor Blythe.

If this is a task that can take an appreciable amount of time, it begs the question of why the Respondent has not assessed how much time it takes and made a specific allocation for it in the academics’ workloads. I cannot see how the Respondent can be said to be compliant in any way with the requirements of clauses 19.2(e) and (f) with respect to this particular task. Further, the evidence of Professor Walker – see [87] - is that is that while she has been made aware of the issue it has not been raised with the Workload Group – which presumably means there is no current plan to address the issue.

The other issue is marking. As I stated above, there are a number of tasks that appear to be subject to dispute but I have resolved to use marking as an example issue. It is clear that the position of one hour for marking is an entrenched idea. It appears to me that the figure of one hour was arrived at on the basis of historical practice and the opinions of various senior people. There has clearly been no actual objective assessment undertaken, yet the Respondent is insistent that its figure is valid for two main reasons. Firstly, it appeals to the views of the experts, being long-serving academics who have been involved in marking and setting assessments for many years.

This may be so, but it is remarkable that it appears that the baseline figure – being a figure that some of the Applicant’s witnesses stated the Respondent was often unwilling to change – is one hour regardless of the discipline or the structure of the unit. This may perhaps be explained by the Respondent’s insistence that its clear instruction to all staff was that they need to tailor their assessments such that they can be marked within allocated one the hour – for example see Professor Shine’s comments set out at [92]. Where the assessments are not capable of being marked, then the standard position appears to be that the academic must adjust the assessments so that they do fit. This sounds fine in theory.

However, I challenged Professor Blythe on this at hearing. Professor Blythe had placed a focus on reasonableness, but I was more interested in the concept of accuracy. Professor Blythe had said that some tasks did not lend themselves to accurate assessments of time taken. Given this, I had asked about the particular issue of marking. It appeared to me that there would be some significant variation in the time taken by a particular academic to mark different papers and indeed variation between different academics asked to mark the same paper.

Professor Blythe’s evidence was that the timings were reasonable based on the views of long-serving academics about the issue. He also advanced the proposition that academics had to avoid “overly burdensome” assessments and ensure they were setting their assessments in such a way as they could be marked within the resource allocation of one hour. I am reminded at this time of the evidence of Dr Rich who noted that the issue was more complex than this, given that the academic had a duty to maintain the assessments at a level approved by TEQSA. I am particularly mindful that DR Rich lectures in Midde Eastern Studies, being a subject that would appear to be highly complex and nuanced and would potentially not leave itself open to simplistic assessments such as multiple-choice quizzes.

I then put a further question to Professor Blythe regarding the practical reality of marking. Specifically, I asked what an academic – allocated 30 minutes to mark a paper – did if they found at the thirty-minute mark they had not completed the task. The Professor suggested that the academic should have a conversation with the academic team about the appropriateness of that assessment task in relation to the resources available to do the assessments. The next step would then be to explore other assessment options. This response of course provides no practical answer to the specific problem posed.

I should also mention an observation I have about the notion proposed – with respect to Dr Rich – that he was “gold-plating” his assessments. It appears to me that there is something of a gulf between the Respondent and at least some of its academics on the issue of academic standards. The Respondent apparently decries “gold plated” service to students. Presumably this philosophy would not extend to licensed aircraft engineers prepping planes on which the Respondent’s officers might happen to be flying.

On the other hand, I note the following quote from Dr Rich, referred to at [24] above:

“Because of the duty of care required. Because of the requirements to provide high level feedback to students and to ensure that they are growing effectively and that they’re critically reflecting on these complex and nuanced topics that require a lot of sensitivity.”

I note also the quote from Dr Babb referred to at [27]:

Some advice from Teaching and Learning leadership at School and Faculty has been to address these time constraints by reducing the number of assessments in units. Additionally, they have suggested utilising GenAI to assist with marking processes. These recommendations, however, raise significant concerns about the potential compromise of educational quality and the depth of student learning.”

Clearly, there is a gap between the Respondent and some of its academics regarding what level of assessment is appropriate, with the parties potentially starting from different positions: the academics focused on their TEQSA requirements and achieving proper student outcomes and the Respondent – understandably - concerned with viability and the need to achieve appropriate outcomes within a finite budget.

Notwithstanding this issue of academic integrity versus managerial prerogative, the question remains as to whether the Respondent has met its requirements under the workload provisions of the Agreement with respect to marking. While I appreciate – and do not question - the evidence of the Respondent’s witnesses to the effect that changes are regularly made to allocations and that people can – for example - often opt out of marking and pass the task to casual employees, I would observe that the process is purely reactive.

It does not seem to be the case that the Respondent can say that its timings are all accurate based on objective and rigorous examination of the work of its academics. The Respondent’s method seems to be to only deal with such timing problems as are presented and not to go looking for problems. It seems to rely on the notion that if there is a problem, it will be raised by the individual academic and then the Respondent will fix it. This does not appear to me to meet the standard required by the workload provisions in the Agreement which require all timings to be accurate – whether or not someone has complained.

I also accept the evidence of witnesses for the Applicant that in some cases changes are not made. In those cases, I am unclear as to how the Respondent can claim that it has met the requirements of the workload clauses. I am also not convinced that the instruction to simply fit assessments into the hour is reasonable in all circumstances. I accept that there will be cases where one hour may be sufficient to properly and accurately mark assessments that have been set in accordance with TESQA standards. However, there will be some disciplines – and here I refer to Middle East Studies as raised by Dr Rich and also language studies as raised by Ms Whitney – where I accept that it will be very difficult, if even possible at all, to set appropriate assessments and mark them within the timeframe of one hour.

In summary, I do not accept that the Respondent has met the obligations set out in the workload clauses of the Agreement. I am not satisfied that it has taken appropriate actions to do so with respect to the issue of marking, nor with respect to the issue of dealing with AI-related academic misconduct. It may well be the case that there are other tasks where this is the case. However, for the purposes of the dispute, I find that for at least those two issues, the Respondent is not compliant with clauses 19.2(e) and (f).

Conclusion

For the reasons set out above I am not satisfied that the Respondent can be said to have properly complied with its obligations under clauses 19.2(e) and (f) of the Agreement, at least with respect to the two issues noted above. At the risk of repeating myself I am also very surprised that the Respondent has agreed to the new provisions but not sought to educate its staff responsible for practical compliance as to the implications of those provisions. As I have noted above, I regard those provisions as a significant change from the previous requirements, and I believe they are such that they should have been addressed both comprehensively and carefully.

Having found that the Respondent is not compliant, I am then faced with the difficult issue of what should be done. I have considered this at some length and have reached a view about what I think is a potential first step in resolving the dispute between the parties. In terms of the basis for my thinking, it is clear to me that the issue of workload is a genuine issue for employees of the Respondent. Over 60% of them have made this point in a survey albeit that the survey is now a few years old. However, I am doubtful given the prevailing issues in higher education that the problem has improved to the point where it is no longer relevant if indeed it has improved at all.

It is also clear that there is – understandably – a very real concern from the Respondent about the allocation of scarce resources in an environment where I think all parties – and the FWC - agree that conventional working time provisions are not well suited. Against all of this is the backdrop of an ever-increasing focus on psychosocial health as promoted by the Western Australian Government and its agencies.

Given the above, I think the parties have some options before them – noting that doing nothing would not be the one I would recommend. Given the level of investment the parties have made in this dispute to date, it is clear that one option is for the Respondent to appeal this decision and see if a full bench or higher court will give it some relief. It appears to me that such an approach will not only run the risk of consuming significant financial resources – ironically an outcome I would assume the Respondent is trying hardest to avoid – but it is unlikely to make the problem go away. The Applicant and its members have other options they can explore to bring this issue to a head.

On the other hand, I note that the Applicant in its submissions has indicated some flexibility in its thinking about how timings might be established – I note particularly the Applicant’s reply submissions at [22]-[23]. On this basis, another option might be for the parties to consider engaging with each other to explore what meaningful and practical steps might be taken to address both of their issues.

While it is perhaps somewhat optimistic, I am thus proposing to call a conference between the parties to discuss what remedy the FWC should – and no doubt from the Respondent’s perspective could - order. However, I am hopeful that it may be that the parties can find a way to engage with each other such that they can achieve a resolution of this dispute that is an acceptable outcome for both of them. Of course, if the parties cannot find any common ground, I will then issue a decision on remedy.

DEPUTY PRESIDENT

Appearances:

Ms I.Beynon, for the Applicant

Mr T.Dougen, of Counsel for the Respondent

Mr D.Hunt, Minter Ellison for the Respondent

Hearing details:

Monday 19 May 2025
Tuesday 20 May 2025
Tuesday 10 June 2025

Final written submissions:

For the Applicant, 21 July 2025

For the Respondent, undated

[1] See Applicant’s Submissions page 2 at [3]-[5].

[2] See NTEIU v Flinders University of South Australia [2025] FWCFB 62 at [11] and [47].

[3] See the Agreement cl.19.2(e).

[4] See Witness Statement of Dr Ben Rich at [22].

[5] See Court Book pages 550-556.

[6] See Witness Statement of Dr Ben Rich at [23].

[7] Ibid at [51].

[8] See Hearing Recording Number 3 20 May 2020 at time stamp 22:53.

[9] See Witness Statement of Dr Courtney Babb at [28].

[10] See Witness Statement of Dr Courtney Babb at [58]-[60].

[11] See Court Book at page 584.

[12] See Witness Statement of Younghye Seo Whitney at [44].

[13] See Court Book at page 555.

[14] See Berri at [114] and James Cook at [65].

[15] See Respondent’s Submissions at [15].

[16] National Tertiary Education Industry Union v Flinders University of South Australia [2025] FWCFB 62 at [11].

[17] See Respondent’s Submissions at [29].

[18] Ibid at [33]-[34].

[19] See Witness Statement of Professor Blythe at [13]-[14].

[20] Ibid at [20]-[21].

[21] See Court Book at page 584.

[22] See Witness Statement of Associate Professor Walker at [19].

[23] Ibid at [32].

[24] Ibid at [39]-[44].

[25] See Transcript 10 June 2025 at PN603.

[26] See Witness Statement of Professor Shine at [18].

[27] See Witness Statement of Mr Ashwood at [16]-[18].

[28] See Transcript 10 June 2025 at PN795.

[29] University of the Sunshine Coast v National Tertiary Education Industry Union [2021] FWC 6490 at [407].

[30] Applicant’s Reply Submissions at [22].

[31] See Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [2011] FWA 8288 at [10]; Cf Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT case) (1984) 295 CAR 188.

[32] Applicant’s Closing Submissions at [9].

[33] Applicant’s Closing Submissions at [43].

[34] For examples see Ibid at [44].

[35] Applicant’s Closing Submissions at [82].

[36] Treasury Wine Estates Vintners Limited v Pearson (2019) 268 FCR 12 at [76].

[37] Respondent’s Submissions at [18].

[38] Ibid at [24].

[39] Ibid at [25].

[40] Ibid at [32]-[33].

[41] See State Rail as quoted in Endeavour Energy v CEPU [2012] FWAFB 4998 at [8].

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