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The Full Court of the Federal Court’s judgment in Fair Work Ombudsman v Torrens University Australia Limited [2026] FCAFC 17 provides important clarification on the interpretation of “associated working time” under the Higher Education Industry – Academic Staff – Award 2010 and its successor, the 2020 Award.

The decision is significant to universities and higher education providers, particularly in relation to the remuneration of casual academic staff. It confirms a structured and text-based approach to award interpretation and reinforces the separateness of remuneration categories for different academic functions, including lecturing, tutoring, and marking. The case concerned whether “associated working time” within the Award’s lecture rates extends broadly to all marking undertaken by a casual academic, or whether it is confined to work directly connected to lecture delivery.

Background to the Dispute

The proceedings arose from a compliance notice issued by a Fair Work Inspector under Part 5-2 Division 3 of the Fair Work Act 2009 (Cth) (FWA). The notice alleged that Torrens University Australia Limited had failed to properly remunerate a casual academic, Ms Sophie Lucas, for marking duties in accordance with the Award.

The Fair Work Ombudsman (FWO) contended that the Award required separate payment for marking activities, except where those tasks fell strictly within a narrow scope of “associated working time” linked directly to the delivery of a specific lecture or tutorial. On this construction, marking undertaken more broadly was to be paid under the Award’s discrete marking rates.

Torrens University disputed this interpretation. It argued that “associated working time” captured a broader range of academic activity, including marking conducted by a lecturer in relation to subjects they taught. On this view, marking was not always a separately compensable activity under the Award’s structure.

At first instance, the primary judge preferred the University’s construction. The primary judge held that “associated working time” extended to all marking undertaken by a lecturer in subjects they taught, and that the separate marking rate applied only where marking was performed outside those teaching responsibilities. The compliance notice was therefore set aside under s 717(3) of the FWA.

The FWO appealed.

Issues on Appeal

The central question before the Full Court was the proper construction of the phrase “associated working time” in clause 18.2 of the 2010 Award (and the materially identical provision in the 2020 Award). There was no substantive dispute that the Awards establish distinct rates of pay for different categories of academic work, including lectures, tutorials, and marking.

Rather, the controversy concerned whether the structure of those rates allowed for marking to be subsumed within lecturing-related “associated working time”, or whether marking is a separate compensable activity unless expressly linked to a specific lecture delivery task.

The appeal also required the Court to consider the proper approach to interpreting modern awards as industrial instruments of general application, rather than instruments tailored to individual workplace arrangements.

The Full Court’s Reasoning

The Full Court (Lee, Kennett and Stellios JJ) allowed the appeal and set aside the orders of the primary judge, restoring the validity of the compliance notice.

In doing so, the Court emphasised orthodox principles of award interpretation, namely, that modern awards must be construed objectively, by reference to their text, structure, and industrial context, rather than the subjective expectations or operational practices of individual employers.

A central feature of the Court’s reasoning was the structural design of the Award itself. The Award establishes a detailed and differentiated payment system for casual academics, allocating distinct hourly or sessional rates for lectures, tutorials, marking, and other academic duties. This structure, the Court held, reflects a deliberate industrial taxonomy of work types.

The Court concluded that “associated working time” must be understood as compensating for lecture delivery together with a limited and functionally connected set of preparatory or incidental tasks, rather than a mechanism for absorbing all related academic labour.

Importantly, the Court rejected the proposition that marking undertaken by a lecturer in relation to their own subject automatically falls within “associated working time”. To accept such a construction, the Court held, would blur the carefully drawn distinctions between different categories of work and undermine the Award’s internal coherence.

The Court also observed that the primary judge’s reasoning placed undue emphasis on the particular teaching arrangements of the parties. While those arrangements formed part of the evidentiary background, they could not displace the proper construction of a nationally applicable industrial instrument.

The Court noted that the Awards operate across a diverse higher education sector and must therefore be interpreted in a manner consistent with their general application, rather than through a bespoke or institution-specific lens.

In allowing the appeal, the Full Court set aside the declarations made at first instance and ordered that the compliance notice issued by the Fair Work Inspector be confirmed.

The practical effect of the decision is to reinforce the separateness of award payment categories for academic work. It confirms that marking duties are not automatically included within lecturing rates, and that an entitlement to separate marking payments will depend on the proper classification of the work under the Award.

Implications for Universities and Higher Education Providers

The judgment has immediate and broad implications for the higher education sector, particularly for institutions that engage large numbers of casual academic staff.

First, the judgment underscores the importance of strict adherence to Award classifications. Employers cannot assume that payment for one category of academic work covers other categories, even where the same individual performs those tasks in relation to the same subject. Second, it highlights the need for careful drafting and review of casual academic contracts, particularly where roles involve a combination of lecturing, tutoring, and marking. Institutions should ensure remuneration structures clearly align with Award requirements.

Third, the judgment reinforces the Court’s preference for a textual and structural approach to modern award interpretation, with limited regard to workplace practice or administrative convenience. Finally, it may prompt broader sector-wide review of casual academic payment practices, particularly in relation to marking workloads and associated entitlements.

The Full Court’s judgment in Fair Work Ombudsman v Torrens University Australia Limited provides authoritative guidance on the meaning of “associated working time” in the Higher Education Academic Staff Awards. It confirms that award interpretation must be grounded in text, structure, and industrial purpose, rather than individual institutional arrangements.

For universities and higher education providers, the judgment is a timely reminder of the complexity of award compliance in the casual academic context, and the need to ensure remuneration practices align closely with the formal categorisation of academic work.

For tertiary-level casual academics, we recommend seeking legal advice if you believe you have been underpaid.

This article was published on 25 of May by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website.