Industrial Law
University contravened enterprise agreement by failing to pay academic staff engaged as sessional tutors when staff scheduled to perform student consultation work
In National Tertiary Education Union v Monash University (No 2) [2025] FCA 728 (4 July 2025), the Federal Court of Australia (Snaden J) held that Monash University (University) had contravened relevant enterprise agreements when it employed academic staff to perform sessional tutorial work and scheduled these staff members to perform student consultation work, but then did not pay the staff for these duties as a separate category of work that attracts additional rates of pay.
Academic tutors at the University may deliver tutorials (at [1]) and may also be required to engage in student consultation. Student consultation requires staff members to consult with students who are assigned to them, usually about topics relating to the course or unit of which their tutorial forms a part (at [2]).
The National Tertiary Education Union (NTEU) claimed that the student consultation engaged in by the academic tutors was in a different category to tutorials and required additional pay on top of the delivery of tutorials by those employees.
The University argued that the relevant enterprise agreements defined “tutorial” work to include “contemporaneous consultation with students involving face-to-face and email consultation prior to and following a tutorial” and that this definition included student consultation, so the University was not required to pay an additional amount for scheduled student consultation hours (at [7]).
The Court found in favour of the NTEU. The Court refused to accept that student consultation work was “tutorial” work within the meaning of the enterprise agreements.
The University had failed to pay for the work performed by the academic tutors, as required by the relevant enterprise agreements, and therefore the University had contravened s50 of the Fair Work Act 2009 (Cth) (at [9]).
Industrial Law
Court exercises caution in application of principles concerned with course of conduct and totality when fixing pecuniary penalties pursuant to the Fair Work Act 2009 (Cth)
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd (No 2) [2025] FCA 841 (17 July 2025), the Federal Court (Wigney J) considered the principles for fixing appropriate pecuniary penalties in response to a contravention of s501 of the Fair Work Act 2009 (Cth) (Act).
In the liability judgment, the Court concluded that the respondent, Elecnor Australia Pty Ltd (Elecnor) had contravened s501 of the Act by refusing to allow an official of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union) to enter its premises when that official had a right to do so in accordance with pt 3–4 of the Act (at [1]).
Both Elecnor and the Union advanced submissions in relation to the application and significance of the principles concerned with course of conduct and totality (at [39]).
The Court accepted that these principles are tools that can inform the Court’s analysis when fixing pecuniary penalties. However, the Court exercised caution in the application of those principles when fixing pecuniary penalties. This is because the principles strictly apply when sentencing offenders for criminal offences. The principles are also ingrained in notions of punishment, including:
- avoidance of double punishment
- considerations of proportionality
- the obligation to impose a punishment that fits the crime (at [39]).
The Court emphasised that, in Australian Building and Construction Commission v Pattinson (2022) 274 CLR 450, the High Court held that punishment and proportionality are not relevant to the fixing of pecuniary penalties (at [39]).
Despite this, the Court was prepared to accept that it may be appropriate for a court to consider whether more than one contravention forms part of a single course of conduct when fixing pecuniary penalties. This is because, if more than one contravention forms part of a course of conduct, it may be appropriate for the Court to moderate the penalties to reflect this factor and ensure that the aggregate penalty does not exceed the amount required to achieve deterrence (at [39]).
Costs
Full Court set aside order of primary judge, requiring appellant to pay respondent’s costs of proceeding below where both parties enjoyed measures of success
In Orica Australia Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation (No 2) [2025] FCAFC 90 (17 July 2025), the Full Court of the Federal Court (Collier, Snaden and Hatcher JJ) considered whether an order of the primary judge that required the appellant to pay the respondent’s costs of the proceeding should be set aside in circumstances that included where both parties enjoyed measures of success.
Each party submitted the other should be ordered to pay a proportion of its appeal costs (at [10]), but the Full Court ultimately determined that the parties would bear their own costs of the appeal (Court Orders).
Both parties enjoyed measures of success because the appellant was successful in prosecuting its preferred construction of the relevant legislation, which meant that the appellant has no ongoing statutory liability in respect of a relevant cohort of workers. Similarly, the respondent was successful in defending the liability that the primary judge identified in response of the same workers for a significant portion of the time period that was relevant to the proceeding (at [9]).
In these circumstances, the Court ultimately opted to exercise its discretion to award costs in the appeal, so that each party bears its own costs (at [10]).
