Monash Uni loses appeal to rewrite staff agreements, dodge $9m bill
The university wanted to classify all student consultations within a week of lectures and tutorials as unpaid “associated work” for its casual academic staff.
Monash University has lost an appeal to overturn a Fair Work Commission ruling that stopped it rewriting a three-year-old enterprise agreement with its casual academic staff in order to avoid $9 million in backpay.
Fair Work Commission vice-president Ingrid Asbury struck down the university’s contention that deputy president Val Gostencnik incorrectly applied the Fair Work Act to prevent its rewriting of an “uncertain” enterprise agreement from 2019.
The National Tertiary Education Industry Union said that 4,500 staff would lose out on a collective $9 million in unpaid wages if the appeal went in Monash University’s favour.
Mr Gostencnik said a retrospective variation would affect both those who first made the agreement in 2019 and those who were covered by it after it was made.
“The deputy president correctly identified that … taking into account the position of the latter group, and the impact on that group of the passage of time, was rationally capable of bearing on the commission’s determination about whether to vary the agreement retrospectively,” Ms Asbury said.
Ms Asbury also said that Mr Gostencnik’s reasoning was consistent with previous FWC decisions.
Monash University argued that he incorrectly ruled that the university and its staff needed a “common intention” to validly change the agreement. It also said that in declining to change the agreement, due to not finding a shared understanding, he had “fettered” his decision-making powers.
But Ms Asbury said “his observation that the circumstances in which the commission would exercise discretion without evidence of mutual intention are ‘limited’, finds support in the authorities and is entirely orthodox.”
“Any variation would risk having the effect of improving or diminishing the legal position of either the employees covered by the agreement or the university, and that this would occur without any principal assessment of how those legal rights would or should be affected,” she said.
“Altering [the agreement] could potentially benefit one party over the other without a clear assessment of the impact on their legal rights.”
After Mr Gostencnik’s initial ruling in June, NTEU Victorian secretary Sarah Roberts called on Monash University to admit its wrongdoing.
“This case should never have made it to the commission. It was an ill-judged attempt to derail an underpayment claim from staff and the union,” she said.
“Monash University has already admitted to more than $8.6 million in underpayments to Monash teachers between 2014 and 2020. It went to the commission with this application to try and stop a further underpayment claim.”
Monash University’s failed appeal comes after the university sector was accused of mass casualisations and endemic wage theft during submissions to the Universities Accord Panel, the sector’s largest review in a decade.
Then-deputy Fair Work Ombudsman Rachel Volzke said she saw a “pattern of repeated and often entrenched non-compliance by universities, particularly in relation to casual staff”.
Last year, the FWO accepted court-enforceable undertakings with University of Newcastle and Charles Sturt University for $6.2 million and $3.2 million respectively. It sued the University of Melbourne in February over $150,000 in underpayments to casual staff and forced the University of Technology Sydney to hand back $5.7 million in unpaid wages in May.
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