The Fair Work Commission (FWC) has rejected a claim brought by academics of Flinders University of South Australia (University) seeking compensation for excessive hours worked.  The academics failed to establish that they had worked excessive hours, and even if they had, no penalty was payable under the enterprise agreement (Agreement).

This case underscores the need to clearly communicate employee entitlements, discuss workloads, and monitor working hours, even without specific obligations. It also highlights the limitations of the FWC in handling disputes under a fair work instrument: the FWC must base its decisions on the terms of the instrument and cannot add or modify terms based on perceived unfairness.

What happened?

  • Three members of the National Tertiary Education Industry Union (NTEU), referred to as ‘the Doctors’, were employed as academics at the University. Each of the Doctors had been made redundant.  
  • According to the Agreement, a full workload for a full-time academic was 1725 hours, based on a nominal 37.5 hour working week. The Agreement also provided that ‘workload models’ would be developed by the University.  The workload model designed by the University employed the concept of ‘work allocation units’ (WAUs), with 30 WAUs representing a full-time employee’s workload.   
  • The Doctors claimed that the University had consistently assigned them workloads in excess of 30 WAUs, leading to excessive hours worked. However, the Doctors did not keep timesheets are other documentary records verifying their hours worked.
  • Representing the Doctors, the NTEU requested the FWC to:
    • determine that the University had incorrectly applied the Agreement’s clause setting an annual limit on employee hours, resulting in excessive hours for the Doctors; and
    • order a remedy to compensate the Doctors for the excessive hours worked.
  • The University contended that:
    • the workload model evaluates work outputs considering factors beyond the hours required to achieve the expected outputs; and
    • the Agreement only provided for dispute resolution processes to address workload concerns, with no remedy available beyond the entitlements.
  • The NTEU lodged an application under section 739 of the Fair Work Act 2009 (Cth) (FW Act), requesting the FWC to treat the matter as an industrial dispute.
  • Both parties submitted questions for the FWC to address.

Findings of the FWC

  • No ‘hard limit’ of 1725 hours per year. Clause 67.19 of the Agreement set a limit of 1725 hours per year for a full-time academic.  However, the Agreement did not state that this was the maximum number of ordinary hours for the year, nor did it provide for any penalties for exceeding this limit.  The Agreement allowed for the ‘rhythm’ of work, and accommodated variations in workload demands by allowing for weekly nominal hours that could fluctuate.  Thus, the 1725-hour limit functioned more as a ‘soft’ limit.
  • WAUs were not intended to measure time spent. Although the Doctors could establish that they were regularly allocated more than 30 WAUs, this did not directly translate to hours worked.  The NTEU contended that the WAUs were time-based due to an explanation provided in the Workload Model.  However, the Workload Model did not form part of the Agreement.
  • No penalty for overtime in the Agreement. The Agreement did not contain penalties to address additional hours, such as through the payment of overtime or accrual of time off in lieu.  Rather, the Agreement encouraged employees to raise concerns about workload allocation with the University.
  • Ordering payment for additional hours would breach s. 739(5) of the FW Act. The FWC must not make decisions inconsistent with the FW Act or any applicable fair work instrument.  The Agreement qualifies as a fair work instrument under section 12 of the FW Act.  This means that the FWC was unable to imply a term into the Agreement to address any perceived unfairness.
  • No ability to verify hours worked. Because the University did not have any system in place to track or verify the hours worked by employees, and the Doctors had not tracked the actual hours worked, there was no basis for a remedy requiring compensation for excess hours.

Takeaways for employers

  • Act now to monitor employees’ hours: In this case, it was to the University’s benefit that neither party recorded the actual hours worked by the Doctors. However, as a matter of best practice, it’s advisable to track working hours to prevent overwork and mitigate psychosocial risks.
  • Seek expert advice: Consult with professionals to accurately interpret enterprise agreements and modern awards, as overtime provisions can differ significantly between agreements.
  • Communicate openly with your team: Engage in regular discussions about workload to avoid overwork, enhance performance, and resolve issues before they become disputes.
  • Ensure compliance: Review and update your record-keeping practices to meet the obligations under the FW Act and Fair Work Regulations 2009.

 

The information contained in this update is intended as a guide only. You should seek professional advice before applying any of the information to particular circumstances. Whilst reasonable care has been taken in the preparation of this update, EmploySafe Legal does not accept liability for any errors it may contain.

Kate Simpson
Managing Director – Employment & Safety Lawyer
+61 420 972 497
kate.simpson@employsafelegal.com.au

 

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