Torrens University Australia Limited v Fair Work Ombudsman

The Federal Court reviewed a decision of the Fair Work Ombudsman (FWO) in relation to a compliance notice issued to Torrens University Australia Limited. The FWO issued the notice under section 716(2) of the Fair Work Act 2009 (Cth) alleging that Torrens University had failed to pay its casual academic staff the appropriate rates for associated working time, specifically marking assessments. The case centred on the interpretation of the terms "associated working time" in the Higher Education Industry – Academic Staff – Award 2010 and the Higher Education Industry – Academic Staff – Award 2020 (Awards), and whether these terms included marking activities beyond those directly related to the delivery of individual lectures. Torrens University argued that the marking of assessments for subjects taught by an academic lecturer was part of their associated working time and should be included in the lecturing rate. In contrast, the FWO argued that only marking directly related to the delivery of a particular lecture should be considered associated working time, and other marking activities should be compensated at the marking rate. The Court held that the term "associated working time" should be interpreted to include all marking activities undertaken by a casual academic lecturer for subjects they taught, not just marking directly related to individual lectures. The Court found that the FWO's interpretation of "associated working time" was too narrow and did not align with the plain language of the Awards or the industrial and commercial contexts. The Court cancelled the compliance notice issued to Torrens University, finding that the university had not contravened the Awards as alleged. This decision highlights the importance of a proper interpretation of terms within industrial awards and the potential consequences of an incorrect interpretation by regulatory bodies.