Federal Court of Australia

Fair Work Ombudsman v Torrens University Australia Limited [2026] FCAFC 17

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The declarations and orders made 16 June 2025 be set aside and in lieu thereof it be ordered pursuant to s 717(3) of the Fair Work Act 2009 (Cth) that the compliance notice issued to Torrens University Australia Limited on 19 March 2024 be confirmed.

3.    The amended originating application be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This appeal is relatively narrow. It concerns the proper construction of the phrase “associated working time” appearing in cl 18.2 of the Higher Education Industry – Academic Staff – Award 2010 and cl 16.4 of the Higher Education Industry – Academic Staff – Award 2020. There is no material difference between the awards, and except where necessary I will refer to the instruments collectively as the Award.

2    The construction controversy arises in the context of the compliance notice regime in Pt 5-2 Div 3 of the Fair Work Act 2009 (Cth) (FW Act). A Fair Work Inspector issued to the respondent (Torrens) a compliance notice alleging contraventions of the Awards by failing to pay a casual academic lecturer, Ms Sophie Lucas, the Award marking rate for marking duties: Torrens University Australia Limited v Fair Work Ombudsman [2025] FCA 634; (2025) 340 IR 423 (PJ) [3]. The compliance letter accompanying the notice stated that the “plain language interpretation” adopted by the appellant (FWO) was that “associated working time” needs to be directly related to the delivery of a particular lecture or tutorial: PJ [10], [19].

3    The primary judge rejected that construction. His Honour held that “associated working time” extends to all marking undertaken by a casual lecturer of assessments in subjects taught by that lecturer, and that a separate marking rate applies where a lecturer marks assessments for subjects not taught by the lecturer: PJ [25], [48]. His Honour declared that the compliance notice was founded on an incorrect construction and cancelled it under s 717(3) of the FW Act: PJ [50].

4    The critical question below, and on appeal, is what the Award means as an industrial instrument of general application across the higher education sector. Despite this, for reasons that are unclear, the primary judge was burdened with a significant amount of irrelevant or marginally relevant evidence, which was apt to distract the parties from the true nature of the construction exercise. His Honour also did not have the benefit of the cogent arguments advanced on appeal by senior counsel for the intervener, the National Tertiary Education Union. With respect to the careful reasons of the primary judge, the construction that found favour below placed undue emphasis upon the bespoke teaching arrangements of the parties and is not supported by the text and structure of the Awards read in their industrial context and purpose.

5    Properly construed, “associated working time” does not ordinarily encompass the marking of subject assessments; that activity is, in general, remunerated under the marking rate provisions, subject only to a confined category of marking that is genuinely associated with the hour of delivery (for example, closely connected, lecture-specific marking tasks).

B    THE FACTUAL AND PROCEDURAL CONTEXT

6    The facts are uncontroversial and can be shortly stated. Ms Lucas was employed by Torrens as an academic lecturer on a casual basis in its Design Faculty: PJ [7]. Although her employment was described as casual, she was responsible for planning, delivering, and assessing entire subjects. Her role involved preparing for and conducting lectures, marking assessments for students in the subjects she taught, and being available to provide support for students: PJ [8]. Torrens paid Ms Lucas the casual basic lecture rate set out in the Award. Torrens did not pay her a separate amount for time spent marking, other than in limited circumstances (late submissions; or marking the work of students she did not teach): PJ [8], [37]. It is not in dispute that the assessments marked by Ms Lucas related to the subjects that she taught as a whole, not to individual lectures: PJ [9].

7    As noted above, a compliance notice followed. This regime is premised on the existence of civil remedy provisions and the enforcement of minimum entitlements. A compliance notice may be issued where an Inspector reasonably believes that a contravention has occurred: cf PJ [3], [10]. The task on a review under s 717 is to determine whether the notice should be confirmed, modified or cancelled: s 717(3).

8    In a review proceeding of this kind, the critical question often reduces to whether the Inspector’s belief depended upon a construction of the industrial instrument which was legally correct. That is for the obvious reason that a compliance notice founded upon an incorrect construction of an award is liable to be set aside as bad in law.

9    Accordingly, while the immediate object is the correctness of the orders made by the primary judge under s 717(3), it is common ground that the substantive issue on this appeal is the construction of the Award. The facts are not disputed and, if the Inspector proceeded on a correct understanding of the Award, there is no reason why an order should not be made confirming the notice.

C    THE AWARD PROVISIONS AND THE CONSTRUCTION QUESTION

10    Clause 16.4 of the Award prescribes minimum casual hourly rates (inclusive of casual loading) under headings including “Lecturing”, “Tutoring”, “Marking rate”, and “Other required academic activity”.

11    Under “Lecturing”, the rate for a basic lecture is expressed as “1 hour of delivery and 2 hours associated working time”. Developed and specialised lectures allocate larger quantities of associated working time; repeat lectures allocate fewer associated hours.

12    Under “Marking rate”, the Award specifies rates for “Standard marking” (and variants where the academic holds a relevant doctoral qualification), and higher rates for marking as a supervising examiner or marking requiring significant academic judgment.

13    The text (but not the numeric rates) in cl 18.2 of the 2010 Award is materially the same as cl 16.4 of the 2020 Award: PJ [12].

14    As will now be apparent, the expression “associated working time” is not defined. The Award therefore requires the Court to ascertain, from the text and context, the scope of work encompassed by “associated working time” within the composite lecturing rate and the distinct field of operation of the marking rate.

D    THE PRINCIPLES OF INTERPRETATION AND MODERN AWARDS

15    The applicable principles of interpretation are not controversial and were set out by the primary judge at PJ [15]–[18]. They are well known and do not require exposition. In short, the Court begins with the ordinary meaning of the words in context and read as a whole, and must construe the instrument in light of its industrial context and purpose.

16    It is, however, worth emphasising at the outset a cardinal feature of the relevant industrial context and purpose. That is, that modern awards are made under the FW Act to provide, together with the National Employment Standards and national minimum wage orders, a guaranteed safety net of fair, relevant, and enforceable minimum terms and conditions. That statutory purpose forms a necessary part of the context against which the Awards are construed.

17    These modern awards operate across an entire industry and must be interpreted so that they function coherently across a wide range of employment settings. It is not in dispute that the allocation of teaching loads and demarcation between permanent and casual workloads at universities in Australia is far from homogeneous. Casual academic work varies considerably. Some employees deliver occasional lectures. Others conduct tutorials. Others undertake marking tasks across subjects in which they have no teaching role. Entirely unsurprisingly, assessment design similarly varies markedly across institutions and disciplines.

18    The construction of the Award therefore cannot turn upon the specific teaching arrangements of a single institution or the particular workload pattern of one employee. The instrument must be interpreted so that its categories of work retain meaning and operate sensibly across that diversity.

E    THE PRIMARY JUDGMENT: STRUCTURE AND KEY STEPS

19    It is useful to identify, at a level of detail, the key steps in the primary judge’s reasoning.

20    First, his Honour identified the FWO’s central proposition as the “Direct Particular Lecture Test”: PJ [19].

21    Secondly, his Honour accepted that it was common ground that a lecturer’s “working time” extends to marking assessments in subjects in which they lecture and that the critical issue was distinguishing marking that falls within “associated working time” from marking remunerated at the marking rate: PJ [26].

22    Thirdly, his Honour rejected the Direct Particular Lecture Test on the basis that “associated” is of broader import than “directly related”, and that there is no textual reason to exclude marking of assessments covering subject matter across multiple lectures: PJ [27].

23    Fourthly, his Honour considered that confining marking to the Direct Particular Lecture Test would ignore pedagogical realities (“scaffolding”) and that the FWO could not articulate a coherent principled boundary other than the test: PJ [28]–[29].

24    Fifthly, an alternative theory (that the marking rate applies to assessments set by someone other than the casual lecturer) was rejected as focussing on an irrelevant consideration: PJ [30].

25    Sixthly, his Honour concluded that the existence of the “standard marking” category did not advance the issue; it was said to distinguish standard marking from higher judgment marking and was readily explicable where the marker is not teaching the subject and would otherwise receive no remuneration: PJ [31].

26    Seventhly, his Honour reasoned that any “directly related” limitation could not coherently be confined to marking, given that associated working time also includes consultation; and that it would be problematic if consultation on topics or issues spanning multiple lectures required separate remuneration under “Other required academic activity”: PJ [32].

27    Eighthly, his Honour treated the FWO’s examples of unfairness as illustrating the inherent inflexibility of award formulae; and accepted evidence that assessments are rarely confined to a single lecture; and undertook a comparative remuneration analysis to test the implications of separately paying marking: PJ [33]–[47].

28    Finally, his Honour concluded that “associated working time” extends to the marking by lecturers of assessments undertaken by their students where the assessment is directed at the content of lectures they have given; and rejected “reasonably contemporaneous marking” as an uncertain temporal limitation: PJ [48].

29    By this route, the primary judge then held the compliance notice bad at law and cancelled it: PJ [49]–[50].

F    CONSIDERATION

30    As noted above, the appeal turns on the objective meaning of the Awards. The correct approach is to construe the relevant provisions as a whole, giving coherent work to their components and avoiding a construction that renders an express category otiose or largely devoid of operation.

31    Two features of the text and structure are of obvious importance.

32    First, the Award expressly creates a composite lecturing rate by reference to delivery and a stipulated number of hours of associated working time. That drafting technique indicates an intention to identify a limited bundle of tasks which, as a matter of industrial assumption, accompany the delivery of a lecture and are compensated in the composite rate.

33    Secondly, the Award separately specifies a “Marking rate” and, within it, “Standard marking”. That is not surplusage. It is an express, stand-alone rate for the activity of marking.

34    A construction that treats “associated working time” as including all marking undertaken by a lecturer of their own students substantially confines the field of operation of the marking rate to a narrow set of circumstances (marking where the marker did not teach the subject). Such a confined role is not textually indicated. The Awards do not say, expressly or by necessary implication, that the marking rate applies only where the marker did not lecture or tutor in the subject.

35    To the contrary, the use of the broad category “Standard marking” is apt to describe ordinary marking of assessment tasks. Nothing in the text suggests that “standard marking” is limited by reference to who delivered the lectures, or whether the marker taught the student. The natural reading is that the Award draws a distinction between: (a) lecturing and tutoring (with associated time); and (b) marking (as a discrete paid activity).

36    In my respectful view, the primary judge erred at the point of giving dispositive weight to the breadth of the word “associated” divorced from the structural function of the separate marking rate. It is true, as his Honour said, that “associated” is broader than “directly related”: PJ [27]. But the content of words of connexion is supplied by context. Here, the immediate context includes an express, stand-alone category and rate for marking. The interpretive task necessarily involves reconciling “associated working time” with that express marking category so that each has appropriate work to do.

37    Once that reconciliation is undertaken, “associated working time” can be seen to capture time spent on those tasks that are naturally and ordinarily incident to lecture delivery. The evident purpose of the phrase is to recognise that the delivery of a lecture is ordinarily accompanied by a limited body of time spent conducting connected work. Given that this purpose accords with the sort of time spent on work one would ordinarily expect to accompany the giving of a lecture, it is tolerably clear that the composite lecturing rate therefore reflects an industrial assumption that a specified quantity of time spent on such associated work can reasonably accompany each hour of lecture delivery.

38    Contrary to the submissions of Torrens, this is not to import the word “directly” by stealth. Rather, it is to give “associated” its contextually appropriate meaning: the associated time is the time spent on the tasks the Award assumes can ordinarily accompany the delivery for which the composite payment is made.

39    With respect, the “Direct Particular Lecture Test” may be inapt as being an over-precise label. The point is not that only work confined to a single lecture can ever be associated; it is that the Award does not permit the wholesale absorption of the different, separately remunerated activity of marking into the associated-time component of the lecturing rate.

40    I also consider that the pedagogical evidence adduced by Torrens, said in part to amount to “opinion” or “expert” evidence from an employee of a party, was distracting (PJ [28], [35]–[36]). Industrial instruments often deploy broad categories to regulate complex and disparate work environments. The fact that assessments are integrated does not answer the question whether marking is to be separately remunerated. The Award can, and on its face does, separate marking as a paid activity notwithstanding any so-called pedagogical integration.

41    The workability concerns raised below do not justify the construction adopted. The Award already contemplates line-drawing between categories (lecturing, tutoring, marking, and “other required academic activity”). The presence of a marking rate presupposes that marking is capable of identification and separate payment in practice. No doubt universities and employees routinely track marking allocation and time for workload and payment purposes, whether under awards or enterprise agreements.

42    The modern awards objective provides additional contextual support for this construction. The unfairness examples recorded at PJ [24] point to the risk that, under Torrens’ construction, an employer may require very substantial marking without additional remuneration, because the associated-time component is fixed and does not vary with cohort size. That consequence sits uneasily with the safety-net purpose described at PJ [16].

43    Of course, I recognise that the primary judge treated those examples as illustrating the “inherent inflexibility” of awards: PJ [33]. That is true as far as it goes; but where the Award has included a separate marking rate, it jars somewhat to treat inequity as an unavoidable by-product of award design. With respect, the preferable view is to treat the presence of the marking rate as the Award’s mechanism for addressing the variability of marking burdens.

44    Torrens’ reliance on the comparative remuneration analysis (set out at PJ [41]–[47]) is an infirm basis to inform constructional choice. This analysis depends on assumptions about subject load, assessment volume, and marking times, and it treats the apparent possibility of high casual remuneration as a reason to read down the marking entitlement. It also does not confront the possibility that the composite lecturing rate already reflects a discounting of the true extent of associated work and that the marking rate is intended to address the additional work of marking. Print P0289 [1997] AIRC 301 (Munro J, Watson DP and Frawley C), which the primary judge cited at PJ [33], contains observations supportive of the proposition that separate payment for marking as a function separate from lecturing would be more equitable than absorbing it within the lecture rate. Much of the history we were taken to by Torrens was at best ambiguous and had little relevance to the construction task, but this industrial history tends to support, not undermine, the view that marking is separately remunerated where performed.

45    Finally, the intervener’s point concerning payment for “work performed” has real force. If marking of assessments can be demanded weeks or months after lectures have been delivered, and if (on Torrens’ construction) that marking is treated as already remunerated through the composite lecture rate paid earlier, questions arise as to the timing of entitlement and the logic of the Award’s payment regime. This reinforces the conclusion that marking is ordinarily treated as separately remunerated work when performed.

46    The proper construction of the clause may therefore be stated succinctly. The lecturing rate compensates for one hour of lecture delivery together with the limited body of work associated with that delivery (principally preparation, but potentially other things such as marking a test or other form of assessment administered during the lecture or speaking to a student at the end of the lecture). The amount of associated time actually spent is, of course, a matter for the employee and is not the subject of direction by the employer. The separate marking rate applies to the ordinary activity of marking assessment tasks. The circumstance that the academic performing the marking also delivered lectures in the subject does not alter the character of that work. To construe the clause otherwise would substantially deprive the marking rate of independent operation and would fail to give meaningful effect to the structural distinction drawn by the Award.

G    CONCLUSION

47    For these reasons, the construction adopted below cannot be sustained and the compliance notice was not founded upon an incorrect construction of the Awards.

48    There was no dispute before us that in the event the appeal was allowed the relief sought in the notice of appeal should follow. Hence the orders of the Court should be: (1) the appeal be allowed; (2) the declarations and orders made 16 June 2025 be set aside and in lieu thereof it be ordered pursuant to s 717(3) of the Fair Work Act 2009 (Cth) that the compliance notice issued to Torrens University Australia Limited on 19 March 2024 be confirmed; and (3) the amended originating application be dismissed.

Associate:

Dated: 17 March 2026

KENNETT J:

49    I agree with the orders proposed by Lee J and with his Honour’s reasons.

Associate:

Dated: 17 March 2026

STELLIOS J:

50    I agree with the reasons of Lee J and with his Honour’s orders.

Associate:

Dated: 17 March 2026