Looks like a duck but isn’t: UNE wins pay-cut case

The University of New England has a win in the Fair Work Commission in a  case involving pay-rates for casual academics in the school of education, teaching on-line.

Last year management reduced payment for on-line teaching from $133 to $62 an hour, without any commensurate cut in the work involved.

Unsurprisingly, this upset people. The campus branch of the National Tertiary Education Union argued it is in breach of the university’s 2014 enterprise agreement, to which management replied it was only enacting what the EA actually states and that the previous pay-rate was wrong.

The parties argued at length about what on-line teaching involved and what pay-rate applied, with Commissioner Johns concluding the agreement does not include on-line work in the class of the more highly paid tutorials.

“This is not a case of where ‘if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck’. And so, while the on-line work undertaken by casuals may have all the hallmarks of a tutorial that is not how it is defined in the agreement,” the commissioner said.

“The task I have performed does not involve a rewriting of the agreement to achieve what might be regarded as a fair or just outcome. Had I done that then the interpretation advanced by the NTEU would likely have prevailed. But that is not the role of the commission in interpreting agreements. The agreement before me is that which was produced by the parties and it was open to them to define ‘tutorial’ as they liked. Having decided that the agreement has a plain meaning I am not permitted to contradict the plain language of the agreement. To adopt the contentions of the NTEU would result in the plain language of the agreement being contradicted and have me fall into error.”

The win for management only applies in the education school, but UNE observers suggest a loss would have had uni-wide implications.

Back in January the commission also concluded that UNE agreements mean what they say but that an existing workload model could not apply to an academic operating unit that did not exist when the EA was agreed ( CMM January 19).



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