Federal Court of Australia

National Tertiary Education Union v Monash University (No 2) [2025] FCA 728

ORDERS

THE COURT ORDERS THAT:

1.    Within 28 days of these orders, the parties are to confer and, if possible, agree upon a form of orders giving effect to these reasons.

2.    In the event that such an agreement is reached, the applicant is to submit the agreed form to the chambers of Justice Snaden.

3.    In the event that no such agreement is reached within that time, then the parties are to provide, promptly thereafter, competing minutes of proposed orders to the chambers of Justice Snaden.

4.    Absent any exhortation to the contrary, the court will make final orders on the papers in disposition of the preliminary issues to which the attached reasons relate.

5.    The matter be scheduled for a case management hearing on a date to be fixed.

6.    Costs be reserved.

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

REASONS FOR JUDGMENT

SNADEN J:

1    A common feature of university education is student participation in tutorials that complement or are ancillary to lecture-based learning. That is the system most typically employed by the respondent, Monash University (“Monash”), in the delivery of course work pertaining to its extensive range of academic disciplines.

2    The work that is inherent in the administering of tutorials has multiple dimensions. One of them involves student consultation: it is accepted and common that academic tutors are called on from time-to-time to consult with the students that are assigned to them; principally (although not always solely) about matters pertaining to the course or unit within which their tutorial is a constituent part. It is to that dimension of tutorial work that the present proceeding relates.

3    To facilitate the holding of tutorial-based learning, Monash employs what are known as “Sessional Teaching Associates”. Between July 2013 and February 2023, Monash engaged Dr James Kent on that basis in the philosophy department of its School of Philosophical, Historical and International Studies, one of a number of schools comprising its Faculty of Arts. Between July 2018 and December 2024 (and possibly beyond), it engaged Mr Michael Ciaravolo on the same basis within the Department of Banking and Finance in its Faculty of Business and Economics.

4    In their roles as Sessional Teaching Associates, Dr Kent and Mr Ciaravolo hosted tutorial sessions associated with units that Monash ran within their respective departments. Their engagement as sessional staff was subject to the terms of two successive enterprise agreements that were made and, at different times, had effect pursuant to pt 2-2 of the Fair Work Act 2009 (Cth) (the “FW Act”). The first was known as the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 (hereafter, the “2014 EA”); the second as the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (hereafter, the “2019 EA”).

5    The 2014 EA operated between October 2014 and February 2020. The 2019 EA commenced to operate in February 2020 and continued in operation as at the point that this proceeding was commenced. Each instrument (collectively, the “Monash EAs”) covered (within the meaning contemplated by s 53 of the FW Act) Monash and, during their employment, Dr Kent and Mr Ciaravolo. Each also covered the applicant, the National Tertiary Education Industry Union (“NTEU”), which is an employee organisation registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth).

6    For present purposes, each of the Monash EAs contained identical terms concerning the engagement of “sessional” academic staff and the rates of pay that they were to be afforded, including for their administering of tutorials. The terms in which those provisions are expressed are considered in greater detail below. By way of introduction, it suffices to note that a dispute has arisen as between the NTEU and Monash concerning sessional academic staff and some of the student consultation work that they are (and were) called upon to perform.

7    Specifically, the NTEU maintains that scheduled student consultation hours that Sessional Teaching Associates like Dr Kent and Mr Ciaravolo were, from time-to-time, required to undertake did not involve “tutorial” work for the purposes of the Monash EAs; but, rather, was in a different category in respect of which a different rate was payable. Monash maintains that “tutorial” work, defined (as it is) in each of the Monash EAs to include “contemporaneous consultation with students involving face-to-face and email consultation prior to and following a tutorial”, is apt to include scheduled student consultation hours, such that no additional payment arises in respect of the latter.

8    That is the primary issue upon which the court is asked now to adjudicate: insofar as it has treated Dr Kent’s and Mr Ciaravolo’s scheduled student consultation work as work inherent in the administration of tutorials (and not as a separate category attracting additional rates of pay), Monash stands accused of having contravened each of the 2014 EA and the 2019 EA, and, thereby, of having acted in contravention of s 50 of the FW Act. Secondary issues arise in respect of certain record-keeping obligations and in the NTEU’s standing to prosecute its case insofar as it concerns the 2014 EA.

9    For the reasons that follow, all of the questions that arise must be resolved in favour of the NTEU. The scheduled student consultation work in which Dr Kent and Mr Ciaravolo engaged was not “tutorial” work within the meaning of the Monash EAs; and, by failing to pay them for that work as those instruments required, Monash must be understood to have acted in contravention of s 50 of the FW Act (and also of a separate statutory injunction relating to the preparation and maintenance of proper records). The NTEU is competent to prosecute its case as much in respect of the 2014 EA as the 2019 EA. There shall be relief consistent with those realities, which will likely necessitate further hearing.

The Proceeding

10    The proceeding is of long standing, having been commenced by originating application in September 2022. In October 2022, Monash made what was to become a successful interlocutory application in the matter, by reason of which it was temporarily stayed pending the outcome of a related application in the Fair Work Commission (the “FWC”): National Tertiary Education Union v Monash University [2022] FCA 1368 (Snaden J). Specifically, Monash filed in the FWC an application under s 217 of the FW Act to have the 2019 EA varied so as to remove an ambiguity or uncertainty; in particular, so as to clarify what species of student consultation was or was not to be covered by what the 2019 EA contemplates as “tutorial” work.

11    Thereafter, the matter remained dormant until such time as the FWC could determine that application. That took a little under a year. In June 2023, Monash’s application under s 217 of the FW Act was dismissed: Re Monash University [2023] FWC 1148 (Bell DP). The FWC granted Monash permission to appeal that determination; but the resultant appeal was dismissed in October 2023: Monash University v National Tertiary Education Industry Union (2023) 327 IR 355 (Asbury VP, Gostencnik DP and Bissett C).

12    In February 2024, the matter came back before me for case management. By that stage, the NTEU had filed an amended statement of claim, which maintained an unorthodox (which is not to say objectionable) form. In addition to general allegations concerning the involvement of “Affected Teaching Associates” in scheduled student consultation work, the amended statement of claim also made equivalent allegations specific to Dr Kent and Mr Ciaravolo. Ultimately, the court indulged an agreement that the parties had struck that the matter should proceed initially in respect only of the allegations specific to Dr Kent and Mr Ciaravolo.

13    It was on that initial basis that the matter has progressed. Unremarkable case management orders were made and complied with, and the matter—in its provisionally truncated form—proceeded to trial in December 2024. The NTEU led evidence from Mr Ciaravolo and Dr Kent, as well as from one of its former officials, Mr Ken McAlpine, and two other teaching associates (or, former associates), Dr James Tanter and Dr Scott Robinson. All but Dr Robinson gave oral evidence at the trial. Monash led affidavit and oral evidence from Prof Catherine Mills, the former head of its School of Philosophical, Historical and International Studies (which forms part of its Faculty of Arts).

Background facts

14    Very little in the way of factual background is in contest. In the summary that follows, I should be understood to have made findings consistent with what is recorded.

15    Insofar as concerns the particulars of Dr Kent’s and Mr Ciaravolo’s employment as Sessional Teaching Associates, it is unnecessary to say more than what has already been rehearsed. It is common ground that each was employed on that basis; and that, in the course of his employment, each was required to undertake scheduled student consultation work, by which he made himself available at nominated (and, presumably, advertised) times and places for the purposes of holding discussions with the students who were enrolled in the tutorials that he administered.

16    At relevant times, Dr Kent and Mr Ciaravolo were each engaged to deliver one weekly tutorial (and, in most cases, a number of repeat tutorials covering the same subject matter), for which they were paid at the rates prescribed by the prevailing enterprise agreement. It was common ground that, generally speaking, the delivery of tutorials required a degree of preparation and, in most cases (if not invariably), a measure of discussion with students before and after each tutorial was delivered. For the most part, those discussions tended to focus upon the content of the course in respect of which the tutorial was held; but other topics were also broached from time-to-time.

17    The scheduled consultation times that each of Dr Kent and Mr Ciaravolo was required to undertake tended to coincide with the delivery of their tutorials (or their repeat tutorials).

18    In Dr Kent’s case, every scheduled consultation session in which he partook took place on the same day as the tutorials that he was engaged to deliver. Although it is not entirely clear on the evidence, the bulk (and possibly all) of his consultation sessions appear to have been held immediately before or after a tutorial (or repeat tutorial). In Mr Ciaravolo’s case, most of his scheduled weekly consultation sessions took place on the same day as his tutorials, although some occurred at other times.

19    Both of Dr Kent and Mr Ciaravolo gave evidence to the effect that he indulged other forms of student consultation outside of the hours that were scheduled. Those discussions included ad-hoc discussions with students held immediately before or after tutorials, or between other classes. Some consultation occurred in writing, in the form of email responses to students or responses posted on Monash’s online chat platform, “Moodle”.

20    Again, the subject matters discussed in those fora were not fixed. One might generally assume that most discussions were course-related; but the evidence made clear that other topics arose for discussion from time-to-time, including career counselling or support, and welfare and mental health concerns. Monash did not require that sessional academics undertake consultation on matters unrelated to their courses; instead (and for the most part), they were instructed to refer students who were or appeared to be in need of any specialist counselling to the university’s specialist counsellors.

21    Also made apparent was the fact that different practices abound within Monash as to how sessional academics are remunerated for scheduled consultation time. In some schools or departments, scheduled consultation in which tutors engage is not treated as though part of “tutorial” work. In others, there is no requirement that tutors engage in scheduled student consultation.

22    Some evidence was led concerning the historical treatment of scheduled consultation work, both at Monash and, more broadly, within the higher education sector. For reasons that will later become apparent, it is unnecessary that I should summarise that evidence now.

The Monash EAs

23    As has already been made clear, each of the 2014 EA and the 2019 EA contained what, for present purposes, were relevantly identical provisions concerning the work that sessional academic employees were to undertake and how they would be paid when they performed it. It shall suffice to set out those provisions as they existed in the 2019 EA.

24    Clause 16 of the 2019 EA is entitled, “mode of employment”. It makes provision for various classes of employment, including permanent (or “continuing”), fixed-term, and “sessional”. Clause 16.12 appears beneath the heading, “Sessional Employment (Academic Staff only)”. It defines “sessional employment” as:

…the casual employment of academic Teaching Associate staff who are appointed to undertake a single or specific number of sessions related to demonstrating, tutoring, lecturing, marking, supervision, academic research assistance, music accompanying with special educational service, undergraduate clinical nurse education or other required academic activity...

25    Part C of the 2019 EA is entitled, “salaries and related matters”. Amongst its provisions is cl 25.1, which (in addition to other matters) requires that teaching associate staff be “…paid a sessional or hourly rate as specified in Schedule 2 of this Agreement…”

26    Schedule 2 to the 2019 EA is entitled “teaching associate sessional rates and casual academic research assistant rates”. It comprises of a table that lists a series of activities, grouped under eight headings (to which attention will shortly turn), and the corresponding rates of pay that are prescribed from various points throughout the currency of the agreement. It is necessary only to replicate the activities that are there listed:

27    At the top of the table that comprises sch 2 is a note: “Descriptors for the below activities are contained in Schedule 3”. Schedule 3 to the 2019 EA is entitled, “teaching associate sessional rates descriptors”. It consists of seven numbered headings that correspond to the first seven of the headings in the table that comprises sch 2. Below each of those headings are various descriptive passages that give context to what the headline descriptors were intended to contemplate. It is convenient to replicate the relevant parts of sch 3:

1.    TUTORIALS

“Tutorial” means any education delivery, described as a tutorial in a course or unit outline, or in an official timetable issued by the University.

Except for repeat tutorials, the rates prescribed are paid per hour of tutorial delivered (or equivalent delivery through other than face-to-face teaching mode) and assume two hours’ associated work as defined below.

A repeat tutorial is a second or subsequent delivery of substantially the same tutorial in the same subject matter within a period of seven days. The prescribed rates are paid per hour of tutorial delivered and assume one hour's associated work as defined below.

Where a tutorial is more or less than one hour in length, the payment will be pro-rata the appropriate rate for a tutorial of one hour’s duration.

For the purposes of payment of a tutorial or repeat tutorial rate, “associated work” may encompass the following activities:

•    preparation of tutorials;

•    marking of student work for which the Teaching Associate staff member is responsible where the marking is performed (or could reasonably be performed) in the relevant classroom, tutorial or equivalent teaching environment;

•    incidental administration of relevant records of students for whom the Teaching Associate staff member is responsible;

•    contemporaneous consultation with students involving face-to-face and email consultation prior to and following a tutorial; and/or

•    attendance at ad hoc meetings specifically for the purpose of assisting Teaching Associate staff to prepare for their tutorial and which are intended as a substitute for preparation that the staff would have otherwise had to undertake, not including meetings formally initiated and/or scheduled by the unit or course convenor/co-ordinator and where the meeting is scheduled on a day on which the staff member is not scheduled to undertake contact or other teaching activities.

2.    LECTURES

“Lecture” means any education delivery described as a lecture in a course or unit outline, or in an official timetable issued by the University.

The pay rates are paid for one hour of delivery (or equivalent delivery through other than face to face teaching mode) and associated work as defined below.

For the purposes of payment of a lecture or repeat lecture rate, “associated work” may encompass the following activities:

•    preparation of lectures;

•    marking of student work for which the Teaching Associate staff member is responsible where the marking is performed (or could reasonably be performed) in the relevant classroom, lecture or equivalent teaching environment;

•    incidental administration of relevant records of students for whom the Teaching Associate staff member is responsible;

•    contemporaneous consultation with students involving face-to-face and email consultation prior to and following a lecture; and/or

•    attendance at ad hoc meetings specifically for the purpose of assisting Teaching Associate staff to prepare for their lecture and which are intended as a substitute for preparation that the staff would have otherwise had to undertake, not including meetings formally initiated and/or scheduled by the unit or course convenor/co-ordinator and where the meeting is scheduled on a day on which the staff member is not scheduled to undertake contact or other teaching activities.

3.    MUSICAL ACCOMPANYING WITH SPECIAL EDUCATIONAL SERVICES

…

4.    UNDERGRADUATE CLINICAL NURSE EDUCATION

…

5.    MARKING

Except as otherwise determined at the discretion of the University, the following provisions will displace any more beneficial marking payment arrangements applying by way of local custom and practice within the University as at the commencement of this Agreement.

Teaching Associates will be paid marking rates as set out in this Agreement where they undertake marking as a requirement of the supervising lecturer in charge of the subject or course, other than marking which is performed (or could reasonably be performed) in the relevant classroom, tutorial/lecture or equivalent teaching environment.

The number of hours allowed for marking and the appropriate marking rate per hour will be determined by the Dean taking into consideration the expected time taken to undertake the marking based on the complexity of the marking in the context of the academic discipline involved. The Dean’s determination of the number of hours for marking will be consistent with guidelines issued for each faculty. These guidelines will be developed in consultation with academic staff within the relevant discipline or organisational unit and will set out reasonable expectations about the number of hours to be allowed for marking based on the complexity of the marking and allowing for variations in level of experience of the marker in the context of the academic discipline involved.

The complex marking rate is paid for marking that is undertaken as a supervising examiner or which requires the significant exercise of academic judgement where for example detailed feedback and comments on complex assignments or examination papers and/or large body of work such as a thesis is required.

The standard marking rate is paid for marking that does not require a significant exercise of academic judgement such as where the marker is able to determine the correct answer by application of a marking template or where general commentary or feedback on a written piece of work is provided.

6.    SUPERVISION

…

7.    OTHER REQUIRED ACADEMIC ACTIVITY

“Other required academic activity” includes work that the University requires a Teaching Associate staff member to perform and that is performed as required, being work of the following nature:

•    the conduct of practical classes, demonstrations, workshops, student field excursions;

•    the conduct of clinical sessions other than clinical nurse education;

•    the conduct of performance and visual art studio sessions;

•    musical coaching, repetiteurship, and musical accompanying other than with special educational service;

•    development of teaching and subject materials such as the preparation of subject guides and reading lists and basic activities associated with subject co-ordination;

•    consultation with students (other than as contemporaneous consultation for a tutorial or lecture);

•    attendance at departmental and faculty meetings as required; and

•    attendance at any of the activities set out in 1-4 above of this Schedule as directed.

The above list is not intended to be exhaustive, but is provided by way of examples and guidance.

The legislative framework

28    As has been identified, each of the Monash EAs is or was an agreement made pursuant to pt 2-2 of the FW Act. Subdivision D of div 2 of pt 2-1 of the FW Act regulates the legal effect that attaches to such agreements. Relevantly, it does so by reference to three concepts: application, coverage and operation.

29    An enterprise agreement only confers entitlements or imposes obligations upon a person if or to the extent that it “applies” to them: FW Act, s 51. Section 52 of the FW Act addresses the circumstances in which it might be said that an enterprise agreement “applies” to an employee, employer or employee organisation. Section 52(1) provides (and, at all material times, provided) as follows, namely:

52 When an enterprise agreement applies to an employer, employee or employee organisation

When an enterprise agreement applies to an employee, employer or organisation

(1)    An enterprise agreement applies to an employee, employer or employee organisation if:

(a)    the agreement is in operation; and

(b)    the agreement covers the employee, employer or organisation; and

(c)    no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation.

30    Section 53 of the FW Act identifies the circumstances in which an enterprise agreement “covers” an employer, employee or employee organisation. Relevantly, it provides (and provided) as follows, namely:

53 When an enterprise agreement covers an employer, employee or employee organisation

Employees and employers

(1)    An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.

Employee organisations

(2)    An enterprise agreement covers an employee organisation:

(a)    for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

(b)    for a greenfields agreement—if the agreement is made by the organisation.

…

Enterprise agreements that have ceased to operate

(5)    Despite subsections (1), (2) and (3), an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

31    It is not controversial that both of the Monash EAs covered the NTEU throughout their respective periods of operation.

32    Section 54 of the FW Act identifies the circumstances in which an enterprise agreement “operates”. It provides (and provided) as follows, namely:

54 When an enterprise agreement is in operation

(1)    An enterprise agreement approved by the FWC operates from:

(a)    7 days after the agreement is approved; or

(b)    if a later day is specified in the agreement—that later day.

(2)    An enterprise agreement ceases to operate on the earlier of the following days:

(a)    the day on which a termination of the agreement comes into operation under section 224 or 227;

(b)    the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note:    Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3)    An enterprise agreement that has ceased to operate can never operate again.

33    Division 3 of pt 2-1 of the FW Act regulates, amongst other things (and by sub-div C, in particular), interactions between enterprise agreements. It includes s 58 of the FW Act, which relevantly provides (and provided) as follows, namely:

58 Only one enterprise agreement can apply to an employee

Only one enterprise agreement can apply to an employee

(1)    Only one enterprise agreement can apply to an employee at a particular time.

General rule—later agreement does not apply until earlier agreement passes its nominal expiry date

(2)    If:

(a)    an enterprise agreement (the earlier agreement) applies to an employee in relation to particular employment; and

(b)    another enterprise agreement (the later agreement) that covers the employee in relation to the same employment comes into operation; and

(c)    subsection (3) (which deals with a single-enterprise agreement replacing a multi-enterprise agreement) does not apply;

then:

(d)    if the earlier agreement has not passed its nominal expiry date:

(i)    the later agreement cannot apply to the employee in relation to that employment until the earlier agreement passes its nominal expiry date; and

(ii)    the earlier agreement ceases to apply to the employee in relation to that employment when the earlier agreement passes its nominal expiry date, and can never so apply again; or

(e)    if the earlier agreement has passed its nominal expiry date—the earlier agreement ceases to apply to the employee when the later agreement comes into operation, and can never so apply again.

…

34    Section 50 of the FW Act prohibits conduct that is engaged in in contravention of an enterprise agreement. Thus, a person to whom an enterprise agreement applies who engages in conduct that its terms prohibit, or who fails to engage in conduct that its terms require, does so in contravention of s 50 of the FW Act. That section is a “civil remedy provision”: FW Act, s 539(1). Division 2 of pt 4-1 of the FW Act confers upon this court jurisdiction to grant relief to address contraventions of such provisions and it is that jurisdiction that the court is here called upon to exercise.

35    Insofar as concerns the prosecution of an action for relief relating to the breach of an enterprise agreement, s 539(2) of the FW Act (specifically, by item 4 of the table subjoined thereto) confers standing upon:

(a)    an employee;

(b)    an employer;

(c)    an employee organisation to which the enterprise agreement concerned applies; [and]

(d)    an inspector

36    That broad conferral of standing is the subject of various limitations. Section 540 of the FW Act provides (and relevantly provided) as follows, namely:

540 Limitations on who may apply for orders etc.

…

Employee organisations and registered employee associations

(2)    An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:

(a)    the employee is affected by the contravention, or will be affected by the proposed contravention; and

(b)    the organisation or association is entitled to represent the industrial interests of the employee.

(3)    However, subsection (2) does not apply in relation to:

(a)    items 4, 7 and 14 in the table in subsection 539(2); or

…

…

37    Part 3-6 of the FW Act also assumes some significance to the present matter. It imposes various obligations upon “national system employer[s]” such as Monash. Of present relevance are the obligations imposed by div 3, which concerns the creation, provision and retention of various employment records. It is not necessary to rehearse in detail the nature of the obligations imposed or the particulars of what they require to be recorded (or created, provided and retained). It suffices to note that Monash was obliged:

(1)    by s 535(1) of the FW Act, to make and, for seven years, keep records that contained accurate information about its employees’ hours of work; and

(2)    by s 536(1) of the FW Act, to periodically provide to its employees pay slips that recorded those hours and the rates that it paid in respect of them.

38    Sections 535(1) and 536(1) are also “civil remedy provisions” in respect of the contravention of which this court has jurisdiction to grant relief.

Standing

39    As has earlier been recorded, there is a preliminary issue that the court must resolve concerning the NTEU’s standing to apply for relief in respect of its suggestion that Monash has contravened the 2014 EA. The issue is limited to that aspect of the matter: no question arises as to the NTEU’s standing to commence or prosecute its case for relief relating to alleged breaches of the 2019 EA, nor for relief concerning Monash’s alleged failure to create, provide or maintain information as required by ss 535(1) and 536(1).

40    It is to be recalled that, at the time that this matter was commenced, the 2014 EA had already ceased to operate and, therefore, did not apply in any sense recognised by s 52(1) of the FW Act. Monash maintains that that reality is fatal to the NTEU’s standing to bring its action under s 50 of the FW Act for relief relating to alleged breaches of that enterprise agreement (the 2014 EA). The submission is straightforward: because standing in that regard is limited (relevantly) to employee organisations to which the agreement in question “applies”, no action can be commenced by an employee organisation in respect of an agreement that does not apply.

41    The NTEU submits that the standing conferred upon an employee organisation by s 539(2) (in respect of conduct that is alleged to have been engaged in in contravention of an enterprise agreement that applies to it) is properly to be understood as conferring standing in respect of conduct that contravened an enterprise agreement that applied to it when that conduct transpired.

42    Monash submits that the language in item 4 of the table subjoined to s 539(2) of the FW Act reflects “…a deliberate linguistic choice by the legislature as to who may apply for particular orders, and when”. The position reserved for employee organisations, it says, may be contrasted with the position that obtains for employees and employers: subject to the limitations imposed by s 540, the latter may commence an action for relief under s 50 of the FW Act regardless of whether or not the enterprise agreement in respect of which it is brought continues to apply to them (or, indeed, ever so applied).

43    Monash seeks to draw some support for its construction of s 539(2) and item 4 from the judgment of Wheelahan J (with whom Rangiah J and I agreed) in Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union (2024) 305 FCR 554 (“Qube Ports”). In that matter, the court was called upon to review for jurisdictional error a decision of the FWC concerning its powers under s 217(1) of the FW Act. By that decision, the FWC determined that it lacked jurisdiction to entertain an application that an employer had made under that section to vary several enterprise agreements that were no longer in operation. Standing to prosecute applications of that nature was conferred upon parties that were “covered by the agreement[s]”. Because the agreements in question had ceased to operate, s 53(5) of the FW Act had the effect that they no longer “covered” the employer applicant to which each had once applied. That, so the FWC reasoned, meant that the employer could not prosecute its application to amend them.

44    The court concluded that the FWC had not misunderstood the nature of its jurisdiction to vary an enterprise agreement under s 217(1) of the FW Act and the application for prerogative relief was, thus, dismissed. In so concluding, the court was called upon to consider a submission advanced by the employer concerning the standing conferred upon employers, employees and employee organisations by item 4 in the table subjoined to s 539(2) of the FW Act to seek relief under s 50 in relation to conduct engaged in in contravention of an enterprise agreement. Wheelahan J summarised the contention as follows (at 575, [101]):

101.    Qube Ports submitted that [item 4] should be construed as permitting an employee organisation to bring an enforcement action even after the underlying enterprise agreement has ceased to operate. Qube Ports based this submission on the premise that such a construction was demanded so that employee organisations would be in the same position as employers and employees under items 4 and 14, noting that employees and employers have standing under those items without any express requirement as to coverage or application.

45    The court was not disposed to accept that submission. For present purposes, it suffices to record two of the reasons why that was so, which Wheelahan J explained as follows (at 575, [103]-[104]):

103.    First, Qube Ports’ submission starts from an assumption that items 4 and 14 must apply to employee organisations precisely as they do to employees and employers. But this assumption is inconsistent with the fact that the items discriminate textually between employee organisations on the one hand, and employees and employers on the other. In the absence of detailed argument on the question, I am not prepared to assume that employee organisations must necessarily be treated identically to employees and employers. There may be intelligible reasons of policy to distinguish between these classes when it comes to standing to bring an enforcement action. Therefore, I am not prepared to assume without full argument that items 4(c) and 14(c) necessarily encompass employee organisations to whom an enterprise agreement no longer applies, or whom it no longer covers.

104.    Secondly, I am not persuaded that the scheme established under the FW Act necessarily aims to align the conditions for standing under s 217 and s 539(2) items 4(c) and 14(c). For one thing, there are clear textual differences between the conditions. Whereas items 4 and 14, together with s 540(1), additionally confer standing on “an employee” and “an employer” to the extent that they are or will be “affected by” a relevant contravention, s 217 has a different requirement that the employee and employer be “covered by” the relevant agreement.

46    Later, his Honour was moved to consider what Qube Ports had sought to make about this court’s judgment in Miller v University of New South Wales [2000] FCA 1563 (“Miller”; Branson J). There, the court was called upon to determine whether an applicant lacked standing to prosecute an action against his former employer for the imposition of a penalty relating to an alleged breach of a “certified agreement” (a statutory ancestor of what are now known as enterprise agreements). Standing in that regard was conferred by s 178(5A) of the former Workplace Relations Act 1996 (Cth) (as in force prior to the “Work Choices” reforms of 2005—hereafter, the “WR Act”), specifically (and relevantly) upon:

…

(b)    an employee whose employment is subject to the agreement; or

(c)    a person or organisation that is bound by the agreement; or

…

47    The respondent university sought to resist the application on the basis that, as he was no longer in its employ, Dr Miller was not an employee whose employment was subject to the agreement. That concept—subjection to the certified agreement—was relevant both in the direct sense that is evident from the terms of s 178(5A)(b), and also indirectly in that it bore upon whether or not an employee was “a person…that is bound by the agreement” for the purposes of s 178(5A)(c). Certified agreements (or, to be precise, the predominant species of certified agreement for which div 2 of pt VIB of the WR Act provided) “bound”, amongst others, “all persons whose employment is, at any time when the agreement is in operation, subject to the agreement”: WR Act, s 170M(1). Thus s 178(5A)(b) of the WR Act was (insofar as concerned div 2 agreements) redundant, in that an employee who satisfied the description in s 178(5A)(b) was, also and by definition, a person who satisfied the description in s 178(5A)(c).

48    Section 170LX of the WR Act concerned the circumstances in which a certified agreement came into and, later, ceased to be in “operation”. Most commonly (though not exclusively), the operation of a certified agreement ceased upon its replacement after its nominal expiry date: WR Act, s 170LX(2). Thus, a div 2 certified agreement that had ceased to operate also ceased to bind the employees whose employment had otherwise been subject to it.

49    Justice Branson rejected the university’s submission that Dr Miller was precluded from prosecuting his action because he was no longer an employee whose employment was subject to the certified agreement that he contended had been contravened. Her Honour began by recognising the scope for competing constructions of the phrase “an employee whose employment is subject to the agreement” in s 178(5A)(b) of the WR Act, observing (at [19]) (emphasis original):

19    In my view, the reference in par 178(5A)(b) of the Act to “an employee whose employment is subject to the agreement” is, as a matter of language, open to at least two constructions. First, as the respondent contends, it could be a reference to an employee whose employment is subject to the agreement at the time that he or she institutes the relevant proceeding. Alternatively, it could be a reference to an employee whose employment was subject to the agreement when the cause of action under the subsection arose (ie when the alleged breach of the certified agreement took place). It is thus appropriate to give consideration to the purpose or object underlying the Act and to the statutory context in which the subsection is found.

50    After attending to that consideration, her Honour was drawn to conclude (at [26]) (emphases original):

26    The question of the proper construction of the phrase “an employee whose employment is subject to the agreement” in subs 178(5A) of the Act is not easily answered. However, for the above reasons, and notwithstanding the prima facie attraction of the contention advanced by the respondent, I conclude that the applicant is “an employee whose employment is subject to the agreement” within the meaning of the subsection. His employment was subject to the certified agreement at the time that he asserts that the respondent breached a term of the certified agreement by summarily dismissing him.

51    In Qube Ports, Wheelahan J (with whom Rangiah J and I agreed) did not consider that much could there be made of Branson’s J conclusions in Miller. His Honour identified (at 577, [113]) reasons why that should be so, which relevantly included (emphases original):

113.    …First, Branson J was dealing with a different statutory power, cast in different terms, in pursuit of a different end. The mere fact that the result aligns with a result favourable to Qube Ports does not constitute a persuasive reason why s 217 should not be construed as it was by the [FWC]. Secondly, Miller was a case dealing with a claimed breach of a certified agreement. Different considerations can influence the constructional task in that context…

52    Presently, Monash contends that the reasoning to which Branson J was attracted in Miller does not assist the NTEU in establishing its standing to prosecute an action for relief relating to alleged contraventions of the 2014 EA. Respectfully, that is not so. Although plainly not binding—in the sense that it concerned the application of a different statutory regime that employed different conceptual markers and was animated toward the attaining of differently-worded legislative aspirations—the reasoning that guided the court’s determination in Miller is apt to guide mine presently.

53    As was equivalently so in Miller, the reference in item 4 of the table in s 539(2) of the FW Act to “an employee organisation to which the enterprise agreement concerned applies” is open, linguistically, to competing constructions. It could, as Monash submits, be read as a reference to an employee organisation to which an enterprise agreement applies at the time that an application under s 50 is made; or, alternatively, it could be read, as the NTEU submits, as a reference to an employee organisation to which an enterprise agreement applies at the time that a cause of action under s 50 arises (that is, when the alleged breach of the enterprise agreement takes place).

54    Accepting, as I do, the scope for ambiguity, the court’s task is to ascribe to the words in item 4 the meaning that the legislature is taken to have intended that they should have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ). That task starts and finishes with the text but the text must be read in context: Federal Commission of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). That context includes the position of the provision as it appears in the statute as a whole: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 320 (Mason and Wilson JJ). Preference should be afforded to the construction that best achieves the objects of the statute: Acts Interpretation Act 1901 (Cth), s 15AA.

55    For reasons equivalent to those that Branson J identified in Miller, the phrase “an employee organisation to which the enterprise agreement applies” should be understood as a reference to an employee organisation to which a relevant enterprise agreement applies at the time that an alleged breach of its terms takes place.

56    The statutory object to which the FW Act is directed is to “…provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by [amongst other things] enabling fairness…at work…by…protecting against unfair treatment and discrimination, [by] providing accessible and effective procedures to resolve grievances and disputes, and [by] providing effective compliance mechanisms”: FW Act, s 3(e). Having regard to that object, there is no obvious reason why—and, indeed, reason to doubt that—the legislature should be presumed to have seen fit to empower employee organisations to prosecute alleged breaches of enterprise agreements only during their currency.

57    That construction would seem very much to dampen, rather than promote, the statutory aspiration for effective compliance mechanisms. Moreover, there is a measure of absurdity in the notion that an employee organisation should be competent to prosecute an enterprise agreement breach that transpires on the final day of the agreement’s operation but only if its application for relief is made that same day. And, plainly, the promotion of effective compliance mechanisms sits no less uneasily with the curtailment of a right of enforcement otherwise conferred upon employee organisations, which invariably act as bargaining representatives in the negotiation and perfection of enterprise agreements; and which, just as invariably, possess greater means and incentive to hold employers to their bargain than the individual employees that they represent.

58    Beyond the present tense in which item 4 is relevantly expressed, there is no contextual cue supportive of Monash’s construction. But that present tense was equally present in Miller (and, indeed, in the competing construction for which the NTEU contends). Although expressed in different terms, I discern nothing that substantively differentiates the statutory object that was there in play from the object that relevantly underpins the FW Act. Respectfully, then, the reasoning in Miller is compelling.

59    The present tense in which item 4 is relevantly expressed is not dispositive. What is material is the point in time to which it pertains: does standing turn upon whether an applicant answers the description at the time that a proceeding is commenced or at the time that a cause of action accrues? If, as Monash contends, it is the former, then there is considerable scope for absurdity. It is to be recalled that item 4 confers standing upon “an employee” (qualified in the ways for which s 540(1) of the FW Act provides). As Miller makes sufficiently clear, it cannot be that a person who was an employee at the time that conduct was engaged in in contravention of an enterprise agreement—and who was relevantly affected thereby—should be precluded from prosecuting an action for relief if, at the time of applying for it, he or she had ceased to be an employee. It must, instead, be that the reference to “an employee” is to be understood as a reference to a person who is an employee when the conduct in question transpires.

60    So too must one read the reference in item 4 to “an employee organisation to which an enterprise agreement concerned applies”. Insofar as concerns its assertions that Monash contravened the 2014 EA, the NTEU qualifies as such a person; and, thereby, has standing to prosecute the claims for relief that are pressed.

Tutorial work

61    With that (standing) question resolved, attention must turn to the primary substantive issue in the proceeding, namely: whether or not scheduled student consultation—that is to say, periods to which Monash requires its sessional academic staff to commit for the purposes of student consultation—qualifies as “tutoring”. If it does, then it will follow that Monash was not obliged, in respect of that work, to pay Dr Kent and Mr Ciaravolo sums additional to the “tutoring” rates that they were in fact paid, and that the court should reject the NTEU’s assertion that its failure to do so was effected in contravention of s 50 of the FW Act. Conversely, if that scheduled student consultation work falls (and fell) outside of what is conceived of as “tutoring”, then it will follow that Monash was obliged to pay Dr Kent and Mr Ciaravolo sums additional to the “tutoring” rates that were paid and that its failure to meet that obligation amounts (and amounted) to the statutory contraventions of which it stands charged.

62    The court’s task is a familiar one of construction. The principles that guide the discharge of that task are notorious and were not disputed. They were most recently summarised in Torrens University Australia Ltd v Fair Work Ombudsman [2025] FCA 634 (“Torrens University”), a decision to which it will be necessary later to return. Justice Halley in that matter (at [17]-[18]) made the following observations, which I gratefully adopt:

17    The principles governing the interpretation of words in modern awards are well settled. The following fundamental propositions can be distilled from the summary of relevant principles provided by the Full Court in Workpac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 at [197] (Tracey, Bromberg and Rangiah JJ) in the context of interpreting enterprise agreements:

(a)    the starting point is to construe the ordinary meaning of the words in context and read as a whole;

(b)    the words must be construed in light of their industrial context and purpose, and not in a vacuum divorced from industrial realities; and

(c)    the persons framing the words are likely to have a “practical bent of mind” and be more concerned with expressing concepts in a way likely to be understood in the relevant industry rather than with “legal niceties and jargon”, making it appropriate to adopt a purposive approach to interpretation of the words.

18    In adopting a purposive approach, the Court should construe an award in its industrial context and purpose: see Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [2] (Gleesson CJ and McHugh J); [96] (Kirby J). In construing an award in its industrial context and purpose, it should adopt an approach that contributes to a sensible industrial outcome: Amcor at [96] (Kirby J); Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Nine Brisbane Sites Appeal) (2019) 269 FCR 262; [2019] FCAFC 59 at [5] (Allsop CJ).

63    There can be no doubt that the constituent tasks that inhere in the delivery of tutorials incorporate at least some measure of student consultation. Schedule 3 to each of the Monash EAs makes clear that tutorial delivery—and the rate of pay that each one-hour tutorial attracts—incorporates more than simply an academic’s attendance at and administration of a tutorial session. Tutorials also require what the Monash EAs refer to as “associated work”—broadly, work that is associated with the delivery of tutorial-based learning, for which no additional payment is reserved. One aspect of that “associated work” is “contemporaneous consultation with students involving face-to-face and email consultation prior to and following” tutorials.

64    Thus, the substantive question for resolution in this matter is whether or not compulsory, scheduled student consultation is incorporated within that concept of “associated work” (and, more specifically, “contemporaneous consultation [etc]”).

65    Monash, of course, submits that it is. Central to that submission is the proposition that sessional academic tutors cannot sensibly be thought to possess “complete license” with respect to the tutorials that they deliver. They must, for example, undertake their tutoring work at the times and places that Monash nominates, and the content of what is taught must, on any view, adhere to the requirements of the relevant course or unit outline. As Monash fairly submits, tutorials are a mode of education delivery; and it, as an accredited higher education provider, is rightly accountable for the quality of what is delivered on its behalf. With that accountability inevitably comes measures of control over the work that is performed in its name, and over the standard at and the manner in which it is performed.

66    Of that there can be no doubt.

67    However, things become less obvious in respect of Monash’s related proposition: namely, that its common law right as an employer to give lawful and reasonable directions to its employees concerning the manner in which they might discharge their duties translates, in the present case, into a right to dictate that work undertaken by sessional academic staff should qualify as “associated work”. In essence, Monash’s submission is not simply that it has a right, as plainly it does, to require its employees to work consistently with the lawful and reasonable directions that they are given (including as to student consultation work); but also that it may designate at its discretion how the individual tasks that they perform should be treated for pay purposes.

68    I do not accept that either of the Monash EAs reserved for Monash any such right. “Associated work”, as described by sch 3 (in relation to tutorials), recognises that a sessional academic will invariably have to attend to various things in order properly to deliver at an appropriate standard the education that he or she is engaged to deliver. Those tasks may vary from tutorial to tutorial. Some tutorials, for example, might have in-class marking components, whereas others might not. Some tutorials might require incidental administrative tasks, whereas others might not. Some tutorials might cover subject matters more difficult than what is covered in others, or might involve topics with which an individual tutor is less acquainted than others; such that (in either case) more preparatory effort might be required than is usually the case. Importantly, some tutorials—and, no doubt, some tutorial groups—will lend themselves to greater amounts of student consultation than others. The definition of “associated work” recognises that all of those variables exist inherently in tutorial-based education delivery, and that they cannot easily be accounted for in ways that suit all tutorials, all tutors and all tutorial groups all of the time.

69    It is in that sense that the reference to the “assumption” that the delivery of a tutorial will incorporate two hours’ associated work is significant. Although, plainly, the Monash EAs envisage that tutors will attend to the constituent “associated work” tasks as and when required, neither reserve in those regards any particular amounts of related time or effort. It is, for example, left to an individual tutor to decide how much time or effort must be expended to attain the required level of preparation. Inevitably, some will be faster than others; and that may mean that the equivalent per-hour rates that are paid for tutorial delivery might vary from tutor to tutor. That is by design: it is easier (and, in context, eminently sensible) to calculate and administer a rate per product delivered rather than per unit of time; in other words, a rate that is premised upon unverified assumptions rather than attempts to take account mathematically of the wide array of variables that are apt to inform how much time is in fact spent by any given tutor on the delivery of any given tutorial involving any given tutorial group.

70    Monash’s direction that sessional academic staff perform scheduled hours of student consultation, and its treatment of that time as “associated work”, is inherently subversive of that notion, in that it purports to calculate and specify what the Monash EAs expressly reserve for assumption. Moreover, it contemplates that sessional academic staff should hold themselves available for student consultation regardless of whether or not there are students who wish to consult with them.

71    I accept the submission advanced by the NTEU: it is the scheduled nature of the student consultation work that Dr Kent and Mr Ciaravolo performed that suffices conceptually to situate it beyond what the Monash EAs contemplate as “associated work”. Those periods of required, scheduled student consultation were not periods that were “assumed” in any way.

72    So to acknowledge is not to doubt that each of the constituent tasks that comprise “associated work”—including “contemporaneous consultation with students [etc]” is work that sessional academic staff are required to perform. Monash sought to impress upon the court that “associated work” is not work that tutors can perform or not perform at their discretion. I accept that submission, so far as it goes. At issue presently, though, is not whether the tasks that comprise “associated work” are tasks that sessional staff members are duty bound to perform as “tutoring” work. At issue presently is whether sessional staff are required, in that (tutoring) context, to attend to those tasks otherwise than in situations in which they are called upon organically to perform them (such as, for example, when their students ask them questions without notice before or after a tutorial); in other words, does that (tutoring) requirement also arise when they are directed to perform those tasks at specified times and places, and for specified periods, regardless of actual demand? Plainly, Monash can require that if it wants to (at least to an extent that is lawful and reasonable). But what it cannot require is that it qualify as “associated work”.

73    With that acknowledged, little needs to be said about what might or might not qualify as “contemporaneous” student consultation. Monash sought to impress upon the court that student consultation prior to or following a tutorial would qualify as sufficiently “contemporaneous” even if it was not indulged immediately prior or subsequent thereto. Thus it was put that it should be of no moment that Dr Kent and Mr Ciaravolo’s hours of scheduled consultation transpired some time before or after the tutorials that they delivered. It was said that, given tutorials are invariably delivered weekly, consultation that took place within a week of a tutorial should be regarded as relevantly contemporaneous.

74    The NTEU did not dispute that consultation with students might properly be described as contemporaneous even if there were some brief period separating a particular interaction from the delivery of a tutorial. Respectfully, it was astute not to. It is clear from the inclusion of email correspondence within what might qualify as “consultation with students” that “contemporaneous” was not intended to limit that concept to exchanges that took place immediately prior to or after tutorials. Linguistically, there is no reason to read the qualifier in that way.

75    So to acknowledge, however, is not to accept that the scheduled student consultation work in which Monash required that Dr Kent and Mr Ciaravolo engage was “associated work” for the purposes of sch 3 to each of the Monash EAs. It is one thing to acknowledge (or, to use the relevant nomenclature, to assume) that students may wish to consult with their tutor prior to or following a tutorial, and to accept that indulging them in that regard is an ordinary incident of tutorial delivery that should not attract additional payment. It is quite another to require, regardless of demand, that a tutor make him or herself available for consultation at a nominated time and place and for a nominated period.

76    As counsel for the NTEU put it:

The word “associated” has to have meaning, and that provides further context within which we construe “contemporaneous”. What is contemplated here is the type of consultation that it can reasonably be assumed a teaching associate will have to undertake in order to perform their hour of tutorial educational delivery... An email about the tutorial, an email with somebody running late or unable to attend, someone being stopped before or after the class, a walk and talk, all of the incidental day-to-day exchanges that follow from and are associated with providing one hour of educational delivery in the form of a tutorial.

It’s not, “At this time and this place, as directed by your employer”, providing an hour of consultation on any of a much wider range of topics that a student may wish to raise...

77    “Associated work” is apt to describe the array of incidental tasks that sessional academic staff who deliver tutorials could ordinarily be expected to undertake; but which might or might not actually arise in the context of any given tutorial. They might need to be performed at some times; at others, they might not. Conceptually, “tutoring” rates of pay are designed to accommodate that work to the extent that it arises and is performed, without separate account being taken of it. They are not apt to cover other forms of scheduled academic activity in which sessional staff are directed to engage.

78    As with the meaning of “contemporaneous”, I needn’t say anything about the evidence that was led about the history of the relevant clauses, both at Monash and at other higher education institutions. I do not consider that any of that evidence relevantly bears upon the proper construction of schs 2 or 3 to either of the Monash EAs.

79    It is convenient at this juncture to return to Torrens University. In that matter, Halley J granted declaratory and other relief at the suit of a university upon which the Fair Work Ombudsman had issued a compliance notice under s 716(2) of the FW Act. That notice concerned rates that were said to be payable under the Higher Education Industry – Academic Staff – Award 2010 and its successor, the Higher Education Industry – Academic Staff – Award 2020, in each case in respect of marking work undertaken by a casual academic lecturer. The matter turned principally upon whether or not that marking work was apt to constitute what each award described as “associated working time”. Each nominated a single rate that was payable to casual academic staff for “lecturing” work—in the case of the more recent award (as it applied at the relevant time), as follows:

80    Neither award defined what was or was not “associated working time”. The university contended that time spent marking students’ work was apt so to qualify. The ombudsman, by contrast, contended that the concept did not extend beyond the marking of work that was directly related to the delivery of a particular lecture.

81    After setting out matters of background and principle, Halley J was moved to conclude that “associated working time” was not limited to work that bore a direct relationship to a particular lecture. His Honour proceeded to identify the six reasons for which he was attracted to that conclusion, which I needn’t replicate here.

82    With the court’s leave, both the NTEU and Monash filed brief written submissions concerning the significance of Torrens University to the present matter. Monash sought to impress upon the court that Torrens University was “…a highly persuasive judgment, with clear implications on key arguments before the Court in this proceeding”. The NTEU contended that it “…does not answer the questions that fall to be determined in this proceeding” and that, in any event, it “…is plainly wrong and…ought not to be followed”.

83    That last invitation cannot be accepted. Whatever might be said about it, Torrens University doesn’t materially bear upon the proper construction of either of the Monash EAs. For the reasons set out above, that construction rests upon recognition of what the Monash EAs “assume”. The circumstance that looms largest in the present matter did not arise at all in Torrens University.

84    So to observe is not to doubt that Torrens University bears disobligingly upon some of the submissions that the NTEU advanced. Monash submitted, for example, that Torrens University does not reconcile with the NTEU’s contention that “contemporaneous consultation” is limited to consultation that is directly connected with a particular tutorial. So much may be accepted; but, at the risk of labouring the point, I do not consider that to be dispositive.

85    Torrens University concerned the construction of different terms in different instruments in different statutory contexts. Nothing about it requires—or even inclines toward—the favouring of any particular outcome in the present matter and nothing more need be said of it.

86    Before me, there was no dispute that, were the court to construe the Monash EAs as I have, it would necessarily follow that the scheduled consultation work in which Monash required that Dr Kent and Mr Ciaravolo engage qualified as—and ought to have been paid as though—“other required academic activity” under schs 2 and 3. By failing to remunerate Dr Kent and Mr Ciaravolo on that basis, Monash must be understood to have conducted itself in contravention of each of the Monash EAs (in particular, cl 22.1 of the 2014 EA and cl 25.1 of the 2019 EA); and, thereby, to have contravened s 50 of the FW Act.

Employment records

87    Having concluded as I have on the substantive s 50 question, it follows consequentially that Monash must be understood also to have contravened each of ss 535(1) and 536(1) of the FW Act. There is no dispute that that is so and I so find.

Relief

88    As is noted above, the matter has proceeded on a preliminary question limited to the experiences of Dr Kent and Mr Ciaravolo. Upon the conclusions stated herein, the court is to determine the amounts that ought to be paid as compensation to or in respect of Dr Kent and Mr Ciaravolo.

89    During her opening submissions at the trial, counsel for the NTEU indicated that the hours of scheduled student consultation work that Dr Kent and Mr Ciaravolo relevantly performed were agreed as between the parties; and that the question of what relief ought to flow in the event that the court were to accept, as I have, the NTEU’s submissions on the substantive construction point was a simple one of mathematics. Senior counsel for Monash did not cavil with that proposition and neither party made any further submissions on the question of relief.

90    That being so, it is appropriate that I should allow the parties time to reflect on these reasons and propose orders by way of relief that are consistent with them. Those orders will likely contemplate further hearing in relation to the matters that remain to be determined.

Associate:

Dated:    4 July 2025