Monash University has lost its bid to retrospectively change its 2019 enterprise agreement after the industrial watchdog concluded that staff legal rights would be?¡°adversely affected¡±.

Fair Work Commission (FWC) deputy president Andrew Bell has rejected the university¡¯s application to?add a?sentence clarifying the term ¡°contemporaneous consultation¡±, in?an attempt to?remove ¡°an?ambiguity or?uncertainty¡± from the three-year-old agreement.

Under the agreement, ¡°contemporaneous consultation with students¡± is part of the ¡°associated work¡± that sessional academics are obliged to deliver alongside lectures and tutorials.

Student consultations that are not contemporaneous are classified as ¡°other required academic activity¡± for which casuals receive additional payment.

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The change sought by Monash would have meant that student consultations happening within a week of a related lecture or tutorial were deemed contemporaneous, necessitating no?extra payment. It would also have allowed the university to schedule these consultations in advance.

The proposal outraged the National Tertiary Education Union (NTEU), which views contemporaneous consultations as unscheduled interactions immediately before or afterwards.

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Witnesses testifying before the FWC said they had been instructed to set aside time for consultations and banned from claiming extra payment. Other staff had been paid for consultations at the extra rate ¡°for many years¡±, while others had never been asked to schedule consultations.

Monash ¡°embraced aspects of [this] evidence because it further demonstrated¡­the ambiguity and uncertainty¡­that the university was seeking to remedy¡±, Mr Bell observed.

But he dismissed the application. ¡°While the university¡¯s desire to bring the disputing parties out from the ¡®no?man¡¯s land¡¯ of?uncertainty is?laudable, that¡­needs to be anchored against a principled assessment of the potential rights of those affected.¡±

The change would have affected some 4,500 staff, including about 3,100 current casuals and more than 1,400 former employees. Mr?Bell said the uncertainty could have been resolved just as effectively by limiting ¡°contemporaneous¡± consultations to an hour either side of tutorials or lectures.

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The university said it was reviewing the FWC¡¯s decision. It said the commission had agreed with its contention that the enterprise agreement provisions were ambiguous.

¡°The university acknowledges and respects the decision of the FWC to nevertheless decide not to vary the enterprise agreement, because it was not clear what was intended when the provisions were originally inserted over 10 years ago,¡± a Monash spokesman said.

The stakes are high for both parties. The NTEU had warned that a Monash victory would set a ¡°very serious precedent¡±, allowing employers in many industries to rewrite enterprise agreements ¡°after the fact¡± and ¡°kill off¡± underpayment claims.

Instead, the outcome could now allow the union to resume Federal Court proceedings it initiated against Monash nine months ago. The NTEU action, seeking an estimated A$10?million (?5.4?million) for unpaid consultations, was suspended pending the FWC¡¯s decision.

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Meanwhile, the fair work ombudsman has highlighted underpayments of casual academics as a priority issue for the Universities Accord. In?a?letter to Mary O¡¯Kane, who chairs the accord panel, deputy ombudsman Rachel Volzke condemned universities¡¯ ¡°repeated and often entrenched non-compliance¡± as a failure of governance.

¡°We are seeing a pattern¡­of work such as lectures, student consultations and marking being incorrectly classified,¡± the letter says.

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¡°Corporate governance arrangements¡­do?not prioritise or consider workplace relations risks or compliance, [with] inadequate reporting to and oversight by governing boards¡­resulting in a single point of failure.¡±

john.ross@timeshighereducation.com