Federal Court of Australia

Burt v University of Sydney [2026] FCAFC 129

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 4 June 2025, this court dismissed the individual claims that the appellant, Dr Tristan Burt, had advanced in a representative proceeding commenced against the respondents: Burt v University of Sydney (Common Question) [2025] FCA 601 (Lee J; hereafter, the “Primary Judgment”). In doing so, it answered what had previously been identified as a common question upon which the representative action might turn. By a subsequent judgment and consequential orders dated 10 December 2025, the representative proceeding was dismissed in its entirety: Burt v University of Sydney (Section 33ZB Order) [2025] FCA 1484 (Lee J).

2    The common question that was the focus of the Primary Judgment concerned domestic students whom the first respondent, the University of Sydney (the “University”), had accepted as candidates for higher degrees by research (“HDRs”) and who, in connection with that candidature (and between 22 September 2015 and 22 September 2021—hereafter, the “Relevant Period”), received certain Commonwealth scholarships. Dr Burt, as representative of the group, contended that, by reason of the contractual arrangements that obtained upon his receipt of scholarship funds during the Relevant Period, he was engaged not as a student (or perhaps, not only as a student) of the University but as (or also as) its employee. From that central proposition were said to arise various entitlements that, by operation of the Fair Work Act 2009 (Cth) (the “FW Act”), the University was obliged but wrongly failed to afford Dr Burt and the group members. The second respondent, an agency of the Commonwealth, was said (by conduct that needn’t here be particularised) to have been accessorily involved in the statutory contraventions that were alleged against the University.

3    By an amended notice of appeal dated 31 March 2026, Dr Burt appeals from the Primary Judgment and the 10 December orders. Although several appeal grounds are advanced, they all distil to the straightforward proposition that the primary judge erred by concluding that the relationship between Dr Burt and the University was not one of employment. Whether or not he did is the sole question upon which the present appeal turns. The respondents maintain that no such error transpired. Additionally, by notices of contention dated 21 April 2026 and 29 April 2026, the University and the Commonwealth respectively submit that the Primary Judgment should be affirmed on an alternative basis, to which we shall later return.

4    For the reasons that follow, the Primary Judgment is not attended by error and the appeal should be dismissed.

Background

5    The factual landscape underpinning the Primary Judgment is not the subject of contest on appeal. The relevant background facts may, thus, summarily be stated.

6    HDRs are but one genus of the many qualifications that the University offers to prospective students. Some HDR students are fortunate to receive financial assistance in connection with their enrolment. It appears that, during the Relevant Period, at least two forms of Commonwealth financial scholarship were available to be awarded to students of the University who were enrolled in (or candidates for) HDRs: one known as the Australian Postgraduate Award (or “APA”) scholarship and one known as the Research Training Program (or “RTP”) scholarship. It is convenient to refer to them, collectively and as the primary judge did, as the “Postgraduate Research Scholarships”.

7    On 28 April 2016, Dr Burt received and accepted an offer from the University of admission as a full-time Doctor of Philosophy candidate commencing on 1 July 2016. The terms of the offer recorded that the course tuition was “fee exempt” by reason of a governmental research training scheme, although Dr Burt was obliged to pay to the University an annual student services and amenities fee. Acceptance of the offer required that Dr Burt agree to the University’s “Code of Conduct and Conditions of Enrolment”.

8    The primary judge was content to describe the ensuing relationship as an “arrangement”; but it was common ground before him (and remains so now) that Dr Burt’s acceptance of that offer “…brought into being a contract between the University and Dr Burt rather than a non-contractual consensual relationship, the continuation of which was dependent upon the presence of mutuality”: Primary Judgment, [9].

9    In July 2016—nearly two and a half months after the initial admission contract came to be—Dr Burt was offered an APA scholarship. The terms of that offer were written and it will be necessary to explore them shortly. For now, it suffices to note that it was common ground below that the resultant contractual relationship—described by the primary judge as the “Scholarship Contract”—governed the relationship between the University and Dr Burt from 1 July 2016 (being the date upon which Dr Burt’s HDR candidature commenced). On (or with effect from) 1 January 2017, the APA scholarship that Dr Burt had accepted became, instead, an RTP scholarship.

10    Dr Burt completed his doctorate in December 2019 and it was conferred upon him on 3 August 2020.

11    At this juncture, it is prudent to record some of the primary judge’s observations about the statutory character and objects of the University (Primary Judgment, [13]-[16]):

13    The University, originally established in 1850 via the University of Sydney Act 1850 (NSW), is now governed by the University of Sydney Act 1989 (NSW) (University Act). As part of the Full Court in University of Sydney v National Tertiary Education Industry Union [2024] FCAFC 57; (2024) 304 FCR 18 (at 31 [50]), I referred to “the objects and functions of the intellectual community constituted by the University” and noted that s 6 of the University Act provides:

6 Object and functions of University

(1)     The object of the University is the promotion, within the limits of the University’s resources, of scholarship, research, free inquiry, the interaction of research and teaching, and academic excellence.

(2)     The University has the following principal functions for the promotion of its object —

(a)     the provision of facilities for education and research of university standard,

(b)     the encouragement of the dissemination, advancement, development and application of knowledge informed by free inquiry,

(c)     the provision of courses of study or instruction across a range of fields, and the carrying out of research, to meet the needs of the community,

(d)     the participation in public discourse,

(e)     the conferring of degrees, including those of Bachelor, Master and Doctor, and the awarding of diplomas, certificates and other awards,

(f)     the provision of teaching and learning that engage with advanced knowledge and inquiry,

(g)     the development of governance, procedural rules, admission policies, financial arrangements and quality assurance processes that are underpinned by the values and goals referred to in the functions set out in this subsection, and that are sufficient to ensure the integrity of the University’s academic program[me]s.

14     The central importance of research is evident from this object.

15     The practical reflection of the importance of this object is seen by the fact that in 2015, the University had an operating revenue of $2,030.2 million, of which $522.8 million was derived from research and consultancy activities.

16     It is also evident that research students are an integral part of the University’s overall research activity and, according to the University’s Strategic Plan for 2016–20, the University considers HDR candidates as “the future of [its] disciplines and a vital part of Australia’s innovation ecosphere” (whatever that expression means).

12    The University of Sydney (Higher Degree by Research) Rule 2011 (the “HDR Rule”) was made pursuant to s 37 of the University of Sydney Act 1989 (NSW) (or, possibly, pursuant to by-laws made pursuant to that section—it doesn’t much matter). His Honour expended some effort in recording (Primary Judgment, [17]-[19]) the content of that rule:

17    …The HDR Rule applied to all domestic candidates for HDRs and provided that the University will not admit a person to a course unless the person: (a) is eligible for admission to the course; (b) applies for admission in accordance with the HDR Rule and the course resolutions; (c) accepts an offer made by the University for admission to the course; (d) completes, to the satisfaction of the University, all requirements for enrolment in the course; and (e) meets the University’s English language requirements.

18     Dr Burt, like all other applicants for admission to candidature for the degree of Doctor of Philosophy was required to submit to the relevant faculty: (a) a proposed course of advanced study and research, approved by the Associate Dean, in consultation with the Postgraduate Coordinator of the school in which the work is to be undertaken; (b) satisfactory evidence of the applicant’s eligibility for admission; and (c) a statement certifying the applicant’s understanding that, subject to the HDR Rule, if the candidature is successful, their thesis will be lodged with the University Librarian and made available for use.

19     It is also apparent from the materials in evidence that:

(1)     the thesis had to be the student’s own work, embody the results of the work undertaken by the student during their candidature, and form a substantially original contribution to the area of knowledge concerned;

(2)     HDR candidates were required to undertake their candidature wholly under the control of the University (see cl [4.7(1)] of the HDR Rule);

(3)     failure to complete satisfactorily the training documented in the student’s progress plan would be considered evidence of unsatisfactory process and the faculty may decline to examine the thesis if the student had not satisfactorily completed the training documented in the progress plan;

(4)     the rules prescribe the location at which an HDR candidate could pursue their candidature [and] a time limit within which the student was required to complete their course;

(5)     HDR students would be supervised by a supervisory team consisting of at least two supervisors, of whom at least one would be a research supervisor, with the purpose of this supervision requirement being, among other things, to ensure that the HDR students were supported to produce research of a particular quality and to otherwise support the conduct of research;

(6)     the HDR students were required to attend the University for such face-to-face consultation as with their supervisors as was specified annually; and

(7)     at intervals of no longer than one year, postgraduate coordinators were to require students to provide evidence of satisfactory progress of their candidature and to participate in a progress evaluation meeting.

13    The evidence before the primary judge reflected the possibility that an HDR candidate could, if the subject matter of his or her thesis aligned with it, perform work of a nature that might otherwise be performed by a University employee: Primary Judgment, [21].

14    The circumstances in which Dr Burt received funds pursuant to the Scholarship Contract were similarly uncontroversial (and were the subject of analysis in the Primary Judgment, [22]-[28]). On appeal, the court was treated to a helpful and detailed analysis of the relevant statutory and quasi-statutory provisions that regulated the payment of those moneys and contextualised the contractual terms pursuant to which those payments were made. To summarise, Postgraduate Research Scholarship payments were the subject of provision under the Higher Education Support Act 2003 (Cth) and guidelines made thereunder as in force from time to time. For present purposes, it suffices to list the following characteristics—all of which remain uncontroversial—of the scheme as it existed at the time that Dr Burt was awarded the Postgraduate Research Scholarship, namely, that:

(1)    Commonwealth funds were paid directly to higher education providers such as the University in order that they might pay scholarships to students for the purposes of the students’ education;

(2)    eligibility for the scholarships was conditioned upon (amongst other things) academic high performance and the undertaking of an HDR;

(3)    scholarships were to be awarded to students of “exceptional research potential”, following a competitive application process;

(4)    scholarship sums were paid to recipients in order “…to assist with general living costs”;

(5)    recipients were afforded various leave entitlements (such as “20 working days’ paid recreation leave and ten working days’ paid sick leave for each year”);

(6)    scholarship amounts were fixed, subject to annual indexation, at $26,288 per annum, to be paid fortnightly;

(7)    scholarship recipients would be disentitled to receive scholarship funds if they received other amounts (including by way of salary) to undertake their HDR in sums that exceeded identified limits;

(8)    work performed outside of the HDR could be undertaken subject to the approval of the provider, which would be withheld unless the provider was “satisfied that the work will not interfere with the student’s study for their HDR”; and

(9)    ongoing payments would be terminated in the event that a student ceased to meet the eligibility criteria, failed to carry out the course of study competently and diligently or to make “satisfactory academic progress”, or committed serious misconduct.

15    That statutory context understood, it repays to address, briefly, the terms of the Scholarship Contract. Scholarship eligibility required enrolment in a postgraduate degree, generally on a full-time basis. The endeavours to which Dr Burt might apply himself whilst in receipt of it were cast as “studies” or “research” and the sums that he received for them as a “scholarship” or “stipend”. Its maximum duration (described as “tenure”) was three and a half years, slightly less than the “indicative course duration” of four years set out in the offer of admission. Weekly hours spent undertaking “part-time work” were capped at 20 hours and were otherwise not to “interfere with the student’s study program and progress”. Other terms (including as to stipend amount, the limits upon other study funding, leave entitlements and the termination terms) generally reflected the requirements of the scheme.

16    The conditions of enrolment to which Dr Burt assented on 28 April 2016 are not (and before the primary judge were not) in evidence. However, the trial proceeded on the basis that contractual force attached to the HDR Rule and the University’s policies by virtue of Dr Burt’s enrolment. Those policies provided that the University would make certain facilities and resources available for Dr Burt’s research; and otherwise made provision for mutual work health and safety obligations, for the granting of certain intellectual property rights to the University in respect of Dr Burt’s work and for probationary admission to candidature (amongst other things).

17    Additionally, the HDR Rule contemplated that full-time students would work on their candidature for “a minimum of 35 to 40 hours per week for 48 weeks per year” and that two-thirds of such time would be dedicated to research.

18    Before the primary judge, it was “not seriously disputed” that the work of HDR candidates provided a “real form of benefit to the University”. His Honour continued (Primary Judgment, [30]) on that theme:

This benefit arises in manifold ways: it constitutes activity consistent with the objects of the University (as set out above); it adds to the store of knowledge housed within the repository of the University; it enhances the reputation of the University, thereby making it a more attractive intellectual community for new students; it potentially increases the prospect of obtaining additional grant money; and, more generally, it assists in deriving income from student fees and opportunities for commercialisation.

The Primary Judgment

19    After reciting matters of background, the primary judge’s attention turned to the principles of law that were apt to guide his determination of the central question in the matter: namely, was Dr Burt properly understood to be engaged pursuant to a contract of employment? His Honour described as follows (Primary Judgment, [48]-[51]) the “essential features of a contract of employment”:

48    First, the employment relationship with which the common law is concerned must be a legal relationship; it is not a social or psychological concept like friendship: [Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165] (at [187] [44] per Kiefel CJ, Keane and Edelman JJ). Contract is the principal source of the legal relationship, and there can be no employment without a contract: Lister v Romford Ice and Cold Storage Ltd [1957] AC 555 (at 587 per Lord Radcliffe); Personnel Contracting (at 186 [40]–[41] [(Kiefel CJ, Keane and Edelman JJ)], 228 [172] [(Gordon J)]); R v Brown; Ex parte Amalgamated Metal Workers’ and Shipwrights’ Union [1980] HCA 42; (1980) 144 CLR 462 (at 475 per Murphy J); Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 (at 182–183 [16] per French CJ, Bell and Keane JJ); WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 (at 477 [57]–[58] per Kiefel CJ, Keane, Gordon, Edelman, Stewart and Gleeson JJ).

49     Secondly, the contract must involve the performance of work: the first question in any enquiry as to whether a contract of employment exists is whether “work is being done by a person in performance of a contractual obligation to a second person”: Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30; (2003) 122 IR 215 (at 223 [23] per Lawler VP, Hamilton DP and Bacon C). As the High Court noted in Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 (at 404–405 per Dixon J), “[t]he essence of a contract of service is the supply of the work and skill of a man”.

50     Thirdly, there must be a wage or other remuneration, otherwise there will be no consideration: Ready Mixed Concrete [(South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497] (at 515 per MacKenna J).

51     Fourthly, there must be an obligation on one party to provide, and the other party to undertake, work. The obligation required to constitute a contract of employment is that “the putative employer be obliged to pay the putative employee in accordance with the terms of the contract for services reasonably demanded under it” (see Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 342 per Meagher, Handley and Cripps JJA), and that “the putative employee be obliged to perform such services. That is as much so where the service consists of standing and waiting as where it is active”: see Forstaff Pty Ltd v Chief Commissioner of State Revenue (NSW) [2004] NSWSC 573; (2004) 144 [I]R 1 (at 20–21 [91] per McDougall J); Wilton v Coal & Allied Operations Pty Ltd [2007] FCA 725; (2007) 161 FCR 300 (at 376 [162] per Conti J).

20    His Honour’s attention then turned to the principles that distinguish a contract of service from a contract for services. In that regard, it was recognised that the degree of control that a putative employer is contractually entitled to exercise over the manner in which a putative employee performs work is ordinarily a matter of some significance. His Honour continued (Primary Judgment, [55]):

However, control is only relevant if it is exercised by a person or entity qua employer, and not in another capacity in respect of a different relationship…

21    In applying the principles that he had identified, the primary judge was moved to observe (Primary Judgment, [61]):

Often first and common-sense impressions are telling and are simply confirmed by closer analysis. This is such a case. In short, and shorn of unnecessary complication, Dr Burt’s argument must be rejected because, objectively analysed, a candidate’s enrolment as a postgraduate research student to undertake an HDR is best characterised as a voluntary undertaking by the student to complete an agreed, identified course of study or research in furtherance of their own education, with the objective of obtaining the distinction of conferral upon them of a higher degree or qualification. Further, the receipt of payments under the scholarship reflects the payment by the University of moneys granted to it under a statutory scheme, reflecting a public policy that it is worth encouraging such educational attainment. This scheme creates a payment in the nature of a stipend to assist with covering expenses incurred in undertaking the HDR and other living costs. Properly analysed, this is a mechanism for financial support to enable the HDR students to complete their educational endeavour with assistance and does not constitute payments as a reward for services in the nature of remuneration for the research work performed in the course of study or research to attain an HDR.

22    Thereafter and in reference to Dr Burt’s enrolment, his Honour concluded (Primary Judgment, [64]) that, “…[t]he whole point of the work done in connexion with the candidature is to complete independent, supervised study that produces a body of independent, worthwhile work constituting original research outcomes”.

23    Later, his Honour concluded (Primary Judgment, [67]) that, as a matter of objective intention, the work that Dr Burt undertook as part of his HDR was not performed as consideration for receipt of the stipend payable under the Scholarship Contract. By way of development of that conclusion, his Honour observed (Primary Judgment, [68]-[69]):

68    The whole object of the postgraduate scholarships is not to provide a mechanism by which the University can reduce its employment bill by having students doing work that otherwise would be required to be undertaken by researchers. But, as s 46-1 of the HES Act makes plain, “[g]rants for scholarships are made to higher education providers who pay the scholarships to students for the purposes of the students’ education”, and “[c]ertain scholarships may be paid directly to students…”. This stipend is not calculated by reference to time worked or paid by reference to some rational assessment of the services to be provided. Instead, it is a payment made following a discretionary process to cover living expenses due to the perceived value of the postgraduate work by domestic students. Consistent with this characterisation of the stipend being for the purposes of the student’s education, the student must not be receiving other relevant income. As the 2017 Guidelines make clear, to be eligible for an RTP Stipend, “a student must not be receiving income from another source to support that student’s general living costs” in certain circumstances: see cl 1.5(2).

69     This is not to deny the force of the point (which recurred like a leitmotif in Dr Burt’s submissions) that the University obtains a benefit from the research work conducted. This is clearly the case. Universities gain and retain a reputation for, among other things, the quality of the output of their students undertaking postgraduate work. However, it strikes me as entirely artificial that this ought to be characterised in the way Dr Burt’s arguments seek to deploy it, as consideration for the payment of the stipend. This seems to me an example of overcomplication and distortion of a relatively simple set of facts. The notion, as pleaded by Dr Burt, that an HDR was not primarily for the educational benefit of group members simply because at least two-thirds of an HDR must comprise research work does not withstand analysis.

The appeal and the notices of contention

24    As we have foreshadowed, the appeal proceeds upon multiple grounds but all of them coalesce into a single, central contention: namely, that the Scholarship Contract was apt to reflect a relationship of employment as between Dr Burt and the University.

25    Inherent in that primary contention are two secondary contentions: first, that the research work to which Dr Burt committed himself by his HDR candidature was work that he performed for the University; and, second, that the contractual terms pursuant to which that work was performed reserved unto the University a measure of control over its delivery that was consistent with a contract of service (that is to say, with employment).

26    For reasons that will shortly become apparent, it is unnecessary to rehearse the contentions that underpin the respondents’ notices of contention. Dr Burt cannot establish that the work that he undertook in completing his HDR was work that he performed in service to the University. That is not what it was. It was work to which he voluntarily committed as a student enrolled at a place of learning. To state a general proposition: school work and employment service are different things. In some instances, there might be scope for overlap; but not presently. Respectfully, the primary judge was correct to reject Dr Burt’s claims on that basis.

27    Acknowledging (and without wishing in any way to discount) the skill and industry with which the parties’ competing submissions on the notices of contention were advanced, the alternative affirmatory grounds that are the subject of those notices need not be considered: Boensch v Pascoe (2019) 268 CLR 593, 600-1 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629-30 [101] (Bell, Nettle, Gordon and Edelman JJ).

Applicable legal principles

28    At the risk of stating the obvious, an essential component of employment—that is to say, every contract of service—is an obligation to serve: Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, 515 (MacKenna J); Forstaff Pty Ltd v Chief Commissioner of State Revenue (NSW) (2004) 144 IR 1, 20-1 [90]-[91] (McDougall J).

29    Service, at least in that sense, involves the supply of a person’s labour in satisfaction of a contractual obligation: Dietrich v Dare (1980) 30 ALR 407, 411, 414 (Gibbs, Mason and Wilson JJ, with whom Aickin J agreed; hereafter, “Dietrich v Dare”). “Supply” and “obligation” are words of significance. Although its conceptual boundaries might defy convenient exposition, service imports more than merely attendance to outputs from which a putative employer benefits; it must be work that is done for the benefit of a putative employer: Hollis v Vabu Pty Ltd (2001) 207 CLR 21, 38-9 [39]-[40] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ). Moreover, it must be work that a putative employee is obliged to perform; in other words, tasks whose non-performance might sound in breach of contract and in exposure to remedies, including damages for consequential loss: Dare v Dietrich (1979) 26 ALR 18, 36 (Deane J); see also 28 (Muirhead J); affirmed in Dietrich v Dare, 411-2, 414.

30    That expression of principle is a different way of recognising what has come to be known as the “work-wage bargain”—that “[t]he consideration for work is wages, and the consideration for wages is work”: Browning v Crumlin Valley Collieries Ltd [1926] 1 KB 522, 528 (Greer J), cited in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 452 (Latham CJ).

31    More recently in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165 (hereafter, “Personnel Contracting”), the plurality was foundationally concerned with establishing that a putative employee had promised a putative employer to work and was entitled to be paid, “…in return for the work he performed pursuant to that promise”: Personnel Contracting, 202 [89] (Kiefel CJ, Keane and Edelman JJ). Justices Gageler and Gleeson similarly observed (at 205 [104]) that the service performed must be “in exchange for some form of remuneration”; and otherwise endorsed (at 206-8 [107] to [109], [113]) the notion of mutual obligation that is central to contracts of service.

Analysis

32    Presently Dr Burt submits, as he submitted below, that he was obliged by the terms of the Scholarship Contract to do things from which the University benefited; principally, things directed to the advancement of his research. That he did such things was not a proposition with which the primary judge saw fit to cavil and it is not now to be doubted. Indeed, for all of the reasons that the primary judge identified, the proposition must be correct. What it is not, though, is dispositive. At a level of abstraction, it might be said that all educational institutions benefit from the high achievement of their students. Whether that be intangibly (for example, in the form of enhanced reputation or eminence) or otherwise (for example, in the form of increased external funding or the generation of research consistent with institutional purpose) does not much matter. At the risk of labouring the point, benefit alone does not suffice to convert effort expended in the pursuit of academic achievement into service that bespeaks employment.

33    Where Dr Burt’s contention falls flat is in the proposition that he was obliged to perform the work that he performed for the purposes of completing his HDR. He notes that the terms of the Scholarship Contract (and of his enrolment more broadly) contemplated that payments—and perhaps even his candidature—might be withdrawn in the event that he failed satisfactorily to progress his research, or otherwise did not progress it in identified ways. That was so; but so to recognise is not to elevate the work to which Dr Burt committed himself to a point consistent with contractual obligation. The diligent progression of Dr Burt’s research was a contingency upon which was conditioned his continued entitlement to payment under the Scholarship Contract (and, no doubt, his continued enrolment in the HDR). But nowhere in any of the relevant contractual terms was there to be found any promise to the University that he would progress it. It is, on any view and very plainly (and as counsel for Dr Burt accepted), not the case that any failure in that regard could have placed Dr Burt in breach of any contractual term or in a position of exposure to the usual remedies (including damages for loss) that such a breach might occasion. Dr Burt’s position was no different from that of any student enrolled in a course of study with any education provider.

34    To employ the language of the primary judge, the suggestion that the research (and other) work to which Dr Burt committed himself in the course of undertaking his HDR was work that he performed for the University does not withstand analysis. Those tasks were not performed for the University’s benefit, nor, indeed, in return for payment; they were performed because their performance was necessary in order that Dr Burt might obtain his doctorate. Likewise, the stipend was not paid in consideration for the research work that Dr Burt performed; it was paid to Dr Burt in his capacity as a student in support of his educational endeavours.

35    So much is revealed by the express terms of the Scholarship Contract and Dr Burt’s broader enrolment. By the latter, Dr Burt enrolled as a student in a course administered by a tertiary education institution. That course, so University policy contemplated, involved the supervised preparation of research culminating in a thesis, the positive examination of which would result in the conferral of the qualification that Dr Burt coveted. Dr Burt was obliged to pay the University for certain services and amenities; and, had his place not been “fee exempt”, he would have had to pay tuition fees.

36    Obvious problems attend a construction of the Scholarship Contract consistent with what Dr Burt advances. The “requirement” to perform research as part of the enrolment in an HDR was extant whether or not a Postgraduate Research Scholarship was receivable. That the University would receive the benefit of a student’s research regardless of whether it afforded the supposed consideration for it seems, to say the least, intuitively inconsistent with any notion of mutuality or the “work-wage bargain”. Further, the period over which the Scholarship Contract was to endure was shorter than the “indicative course duration”; and if a student received sufficient support towards their studies from other quarters, the Postgraduate Research Scholarship would be withdrawn. Those circumstances sit no less uneasily with suggestions of mutuality.

37    If Dr Burt is correct that the Scholarship Contract was one of service, then (so he properly concedes) it was incapable of taking effect according to its terms. Necessarily on his construction, scholarship recipients would, as employees, be entitled in respect of their HDRs to receive sums by way of salary that, being in excess of the limits identified in the Scholarship Contract, would immediately invalidate any entitlement to the stipend. Again, that somewhat mind-bending circularity tells at least instinctively against the construction for which Dr Burt contends.

38    What of the features that, so Dr Burt contends, “indicate employment in their terms”, such as the affording of leave entitlements in the Scholarship Contract and the expectations as to weekly hours of work? Accepting that those are familiar incidents of industrial relations, there is reason to doubt their relevance to the question here posed. To begin, the leave referred to has its origins not in the Scholarship Contract itself but in the underlying legislative scheme. Further, none of the species of leave, including “recreation leave”, was payable upon the termination of the scholarship. The objective purpose attaching to the leave and “hours of work” is readily apparent: namely, to ensure that students fortunate enough to be supported financially during their enrolment should apply themselves at a level productive of the educational outcomes whose achievement the stipend was designed to promote.

39    What, next, might be made of the degree to which the University—whether by the terms of the Scholarship Contract or otherwise—reserved or enjoyed measures of control over the manner in which Dr Burt’s HDR work was undertaken? During the hearing of the appeal, counsel for Dr Burt was keen to impress upon the court the extent to which his client’s research work was subject to the University’s supervision and direction. Those measures assumed various forms: as counsel put it (non-exhaustively), “…supervision, location of the work, hours of the work, obligations to potentially be under a probationary period, obligations in respect of health and safety, the use of university facilities and resources, the requirement to obey reasonable directions, the requirement to attend meetings as directed.”

40    If the research and course work to which Dr Burt and the other group members committed themselves was properly to be conceived of as work that they promised to perform for the University in exchange for the stipend, it would not be difficult to see how it might constitute service rendered pursuant to contracts of employment. The terms of the HDR Rule and University policies were such as to reserve unto the University considerable scope for control over the tasks that he undertook.

41    Nonetheless—and at the risk of labouring the point—the degree to which contractual terms reserve a right of control over the performance of work is relevant only insofar as the work in question is performed under obligation owed to an employer or principal. That is the context in which one must understand the primary judge’s observation that, “…control is only relevant if it is exercised by a person or entity qua employer…”

42    Similar conclusions serve to dispose of Dr Burt’s contentions as to the other indicia of employment (including the contention that he, and other members of the group, were working as part of the University’s business). As the primary judge said (Primary Judgment, [55]):

The usual matters considered relevant to the enquiry of determining whether a person has been engaged as an employee or an independent contractor assume somewhat less direct relevance in the current case.

43    Neither the terms of the Scholarship Contract nor any others that were apt to bind Dr Burt and the University in connection with his candidature were such as could alter those inescapable truths. Those contractual terms did not bind Dr Burt to the service of the University. The mutuality of obligation that is the cornerstone of every contract of service did not exist. Neither Dr Burt nor the other members of the group that he represented laboured pursuant to contracts of employment.

44    That was the conclusion upon which the primary judge proceeded and, with respect, his Honour was correct to prefer it. Dr Burt’s constituent grounds of appeal must be rejected, as must the central contention around which they singularly coalesce.

45    The appeal should be dismissed. Section 570 of the FW Act very likely prohibits the making of any order as to costs and, at least for now, none should be made.

Associate:

Dated:    23 September 2026