Australia’s top university in court for alleged adverse action against casual academics 

The University of Melbourne allegedly tried to stop the two casual academics "from claiming payment for work performed."

Australia’s workplace relations watchdog, the Fair Work Ombudsman, has commenced legal action against the University of Melbourne for allegedly coercing and taking adverse action against two casual academics.

According to a statement released by Fair Work Ombudsman, the University of Melbourne allegedly tried to stop the two casual academics “from claiming payment for work performed.”

Under the Fair Work Act, it is unlawful for an employer to take adverse action against a person because a person exercises a workplace right or to prevent them from doing so. It is also unlawful for a person to take or threaten to take any action against another person with the intent to coerce them to not exercise a workplace right.

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In documents filed in Australia’s Federal Court, Fair Work has alleged that the University of Melbourne took adverse action against one of the academics when it decided not to offer her any further teaching work. This was done after the said academic claimed payment for extra work and made a number of complaints or inquiries to the University of Melbourne.

In its statement, Fair Work further alleges that the University of Melbourne also threatened not to re-employ the two academics with their supervisor allegedly saying: “if you claim outside your contracted hours, don’t expect work next year”. This was done, Fair Work claims, with the intent to coerce both academics to “not exercise their workplace right to claim payment for the extra work.”

Fair Work Ombudsman Sandra Parker (Fairwork)

Fair Work Ombudsman Sandra Parker said the University of Melbourne’s alleged conduct impacted on fundamental employee rights, and commencing legal action to seek penalties was in the public interest. Ms Parker adds:

“We treat allegations of employers taking action to stop or prevent employees from claiming their lawful entitlements very seriously. Adverse action and coercion directly undermine workplace laws and the ability of employees to exercise their lawful rights.”

Both the academics were engaged on contracts by the University of Melbourne which set out the number of “anticipated hours” per subject. Fair Work alleges that the threat was made because the academics complained about being required to work more hours than the anticipated hours in their contracts.

The legal action comes after the Fair Work Ombudsman announced in June that addressing significant non-compliance issues in the university sector had become one of its top compliance and enforcement priorities. Ms Parker said:

“We are currently investigating a range of underpayment issues in the universities sector, including failures to pay casual academics for all hours worked.”

The Fair Work Ombudsman is conducting a separate investigation into the alleged underpayment of University of Melbourne casual academic employees. That investigation is ongoing.

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At the time the alleged adverse action and coercion breaches occurred, the University of Melbourne had employed the two affected academics on a series of short-term casual teaching contracts – since at least 2016 and 2017, respectively – in its Melbourne Graduate School of Education.

The Fair Work Ombudsman alleges the first adverse action breach and coercion occurred when the academics’ supervisor allegedly threatened not to re-employ them during a Zoom video conference meeting in August 2020.

The Fair Work Ombudsman alleges the second adverse action breach occurred in or around February 2021 when the supervisor decided not to offer one of the two academics any further casual teaching contracts.

It is alleged that the decision was made after the academic asked to be paid for several hours of work she had performed that exceeded the “anticipated hours” in her contract for Summer Semester 2021, and following a number of complaints and inquiries made by the employee to the University since July 2020.

It is alleged that the University of Melbourne has subsequently not offered that academic any further teaching work. However, the University continues to employ the other academic in its Melbourne Graduate School of Education.

Ms Parker said:

“Employers should have proactive measures in place to ensure they are meeting workplace laws. If employers become aware of concerns their employees may be being underpaid, the only appropriate response is to check that they are paying their employees correctly and promptly rectify any compliance issues discovered.”

Provost Nicola Phillips (the University of Melbourne)

In June 2022, the University of Melbourne Provost Nicola Phillips in an interview with ABC’s 7.30 program apologised for underpayment and also announced a shift in University’s reliance on casual staff in response to the scandal. 
She said:

“We’re dismayed that it’s happened … In this case, we have not done the right thing. And we are working really hard to put it right.” 

In the program, Prof. Phillips acknowledged that the casual staffing model was partly to blame for the widespread underpayment at the institution.
She observed:

‘”We’ve identified that this kind of model is not one that serves the university well, and it’s not one that serves our employees well, and we’re determined that for the future, we’re going to rethink this model, reduce our reliance on casual staff and make sure that we put in place something that is more sustainable for the future.”

NTEU Victorian Division Assistant Secretary Sarah Roberts (Twitter)

The National Tertiary Education Union (NTEU) has been calling for a reduction in the reliance on casual staff at Australian universities. NTEU has pointed out the problem of underpayment of casual academic staff at several universities and also lodged disputes.
In a tweet, NTEU Victorian Division Assistant Secretary Sarah Roberts said:

“What will it take for unis to take pro-active steps to fix insecure work and wage theft? Apologies won’t cut it, they speak of deep hubris when prosecutions like this can happen. Fix up this mess now, backpay casuals with super and interest & make sure it never happens again.” 

In the present dispute, the Fair Work Ombudsman is seeking penalties against the University of Melbourne for the alleged contraventions of the Fair Work Act. The maximum penalty per breach is $66,600. In addition to penalties, the regulator is also seeking a court order for the University to pay compensation to the two academics for losses arising from the contraventions. A date for directions hearing in the Federal Court in Melbourne has yet to be listed.