Fair Work Ombudsman v Torrens University Australia Limited [2026] FCAFC 17

This appeal was a focused but commercially important award interpretation dispute. A Fair Work Inspector issued a compliance notice to Torrens University Australia Limited, alleging that Torrens had failed to pay a casual academic lecturer, Ms Sophie Lucas, the award marking rate for marking duties. Ms Lucas worked in Torrens' Design Faculty and, although described as a casual lecturer, she did much more than stand up and lecture. She planned subjects, delivered lectures, marked student assessments and provided support to students.

Torrens paid Ms Lucas the casual basic lecture rate under the applicable higher education academic staff awards. It generally did not pay her separately for marking work connected with the subjects she taught, except in limited situations such as late submissions or where she marked work for students she did not teach. The dispute was therefore not about whether she did marking work. It was about whether that marking was already paid for through the lecture rate or whether the award required separate payment at the marking rate.

Torrens challenged the compliance notice and won at first instance. The primary judge accepted Torrens' argument that the phrase 'associated working time' in the lecturing rate was broad enough to include all marking undertaken by a casual lecturer of assessments in subjects taught by that lecturer. The Fair Work Ombudsman appealed. The National Tertiary Education Union intervened and supported the Ombudsman's position. The Full Court then reconsidered the award's text, structure and purpose.

The central issue was the meaning of 'associated working time' in the casual lecturing provisions of the Higher Education Industry - Academic Staff Award 2010 and the 2020 award. The Court noted there was no material difference between the two instruments for present purposes. Under the award, the minimum casual hourly rates were set out under separate headings including lecturing, tutoring, marking rate and other required academic activity.

For lecturing, the award used a composite structure. A basic lecture was expressed as one hour of delivery and two hours of associated working time. Developed and specialised lectures attracted larger quantities of associated working time, while repeat lectures attracted fewer associated hours. The phrase 'associated working time' was not defined. Separately, the award specified a marking rate, including a category for standard marking and higher rates for other forms of marking requiring greater academic judgment.

The legal problem was how these categories fit together. Torrens' position effectively treated marking by a lecturer of their own students' assessments as part of the associated working time already built into the lecture rate. The Fair Work Ombudsman argued that this approach wrongly swallowed up the separate marking category. Because the case arose through a review of a compliance notice under s 717 of the Fair Work Act, the validity of the notice depended on whether the Inspector's interpretation of the award was legally correct.

The Full Court said the correct approach was to construe the award as a whole, giving coherent work to its different components and avoiding a reading that made an express category otiose or largely empty. It emphasised that modern awards are part of the statutory safety net of fair, relevant and enforceable minimum terms and conditions. That safety-net purpose formed part of the context for interpretation.

The Court also stressed that modern awards operate across an entire industry and must function coherently across a wide range of employment settings. Casual academic work varies significantly. Some employees deliver occasional lectures. Others conduct tutorials. Others undertake marking in subjects where they have no teaching role. Assessment design also varies across institutions and disciplines. Because of that diversity, the meaning of the award could not turn on the specific teaching arrangements at Torrens or on the workload pattern of one employee.

This point mattered because the first instance reasoning had been influenced by evidence about pedagogical integration and the way teaching and assessment were organised at Torrens. The Full Court considered much of that evidence irrelevant or distracting. The real task was not to decide what made sense for one university's operations. It was to identify the objective meaning of the award as an industrial instrument of general application.

This was the heart of the appeal. The Full Court said two structural features of the award were especially important. First, the award expressly created a composite lecturing rate by reference to delivery plus a stipulated number of hours of associated working time. That drafting choice indicated an intention to identify a limited bundle of tasks which, as a matter of industrial assumption, accompany lecture delivery and are compensated in the composite rate.

Secondly, the award separately specified a marking rate and, within it, standard marking. The Court said this was not surplusage. It was an express, stand-alone rate for the activity of marking. If 'associated working time' were read to include all marking undertaken by a lecturer of their own students, the field of operation of the marking rate would be substantially confined to a narrow set of circumstances, mainly where the marker did not teach the subject. The Court said the award did not say that, either expressly or by necessary implication.

The Court considered that the natural reading of the award was that it drew a distinction between lecturing and tutoring, with associated time attached to those activities, and marking, as a discrete paid activity. In the Court's view, the primary judge had given too much weight to the breadth of the word 'associated' without giving enough weight to the structural function of the separate marking rate.

The Full Court then explained what 'associated working time' does cover. It said the lecturing rate compensates for one hour of lecture delivery together with the limited body of work associated with that delivery, principally preparation. It may also include other closely connected tasks, such as marking a test or other assessment administered during the lecture, or speaking to a student at the end of the lecture. But that is different from the ordinary activity of marking assessment tasks, which the award generally treats as separately remunerated work.

The Court was careful not to adopt an over-precise formula. It said the point was not that only work confined to a single lecture can ever be associated. Rather, the award does not permit the wholesale absorption of the different, separately remunerated activity of marking into the associated-time component of the lecturing rate.

The Court gave several reasons for rejecting the broader construction accepted at first instance. First, it said that reading all marking by a lecturer of their own students into associated working time would deprive the marking rate of meaningful independent operation. The award's use of the broad category 'standard marking' was apt to describe ordinary marking of assessment tasks, and nothing in the text suggested that this category was limited by reference to who delivered the lectures or whether the marker taught the student.

Secondly, the Court rejected the idea that pedagogical integration answered the legal question. The fact that assessments may be integrated across a subject, or may reflect content taught over multiple lectures, did not determine whether marking was separately remunerated. Industrial instruments often use broad categories to regulate complex work environments. The award could separate marking as a paid activity even if teaching and assessment were educationally interconnected.

Thirdly, the Court was not persuaded by workability concerns. It said the award already required line-drawing between categories such as lecturing, tutoring, marking and other required academic activity. The existence of a marking rate itself presupposed that marking could be identified and separately paid in practice.

Fourthly, the Court considered the safety-net purpose of modern awards. It noted the risk that, under Torrens' construction, an employer could require very substantial marking without additional remuneration because the associated-time component of the lecture rate is fixed and does not vary with cohort size. The Court considered that result sat uneasily with the award's safety-net function. In its view, the separate marking rate was the award's mechanism for addressing the variability of marking burdens.

Finally, the Court said there was force in the point that marking may be demanded weeks or months after lectures have been delivered. If that later marking were treated as already remunerated through the earlier lecture payment, questions would arise about the timing and logic of the award's payment regime. That reinforced the conclusion that marking is ordinarily separately remunerated work when performed.

The Full Court allowed the Fair Work Ombudsman's appeal. It set aside the declarations and orders made on 16 June 2025 at first instance. In their place, the Court ordered under s 717(3) of the Fair Work Act 2009 (Cth) that the compliance notice issued to Torrens on 19 March 2024 be confirmed. It also dismissed Torrens' amended originating application.

In practical terms, that means the Court accepted the Ombudsman's construction of the award and rejected the construction that had led the primary judge to cancel the notice. The Court held that the compliance notice was not founded on an incorrect construction of the awards. Because the facts were not disputed, and because the appeal succeeded on the legal interpretation issue, there was no reason not to confirm the notice.

Although this case sits in the higher education sector, the practical reading for employers is broader. Payroll errors often arise when a business uses a broad label such as sessional rate, all-inclusive rate or hourly teaching rate and assumes that all connected tasks are bundled into that rate. This decision shows that the legal question is not whether tasks are connected in operations. It is whether the industrial instrument actually allows one category to absorb another.

If an award creates separate rates for separate activities, employers should be cautious about collapsing those categories into one payroll setting. The Court's reasoning is especially relevant where one category is composite and another is separately itemised. A broad reading of the composite category may look convenient, but if it leaves the separate category with little practical role, that is a warning sign.

For business owners and managers, the practical exercise is to compare the real work being done with the actual award structure. Do not rely only on job titles. Ms Lucas was called a casual lecturer, but her work included planning, delivery, assessment and student support. The Court still focused on the award categories rather than the employer's operational description of the role.

That means payroll design, role design and record-keeping should be reviewed together. If staff perform delivery work plus assessment, administration, consultation or follow-up work, ask whether the relevant award treats those tasks as one bundle or as separately payable activities. If the answer is not clear from the text, get advice before building a payroll practice around an assumption that may later be challenged.

The compliance notice was issued on 19 March 2024. The first instance declarations and orders that favoured Torrens were made on 16 June 2025. The Full Court judgment was delivered on 17 March 2026. The appeal was allowed, the earlier orders were set aside, and the compliance notice was confirmed.

This page explains the published decision as a public case summary. Businesses should still check the current award, any enterprise agreement, and the actual duties performed by their staff before making payroll decisions.