In documents filed in the Federal Court, the regulator alleges that the University took adverse action against one of the academics when it decided not to offer her any further teaching work after she claimed payment for extra work and made a number of complaints or inquiries to the University.
The Fair Work Ombudsman further alleges that the University threatened not to re-employ the two academics with the intent to coerce them to not exercise their workplace right to claim payment for the extra work, with their supervisor saying words to the effect of “if you claim outside your contracted hours, don’t expect work next year”.
The academics were engaged on contracts which set out the number of “anticipated hours” per subject. The Fair Work Ombudsman alleges that the threat was made because the academics complained about being required to work more hours than the anticipated hours in their contracts and to prevent them from exercising a workplace right to be paid for the extra hours.
The legal action comes after the Fair Work Ombudsman announced in June that addressing significant non-compliance issues in the universities sector had become one of its top compliance and enforcement priorities.
Fair Work Ombudsman Sandra Parker said the University of Melbourne’s alleged conduct impacted on fundamental employee rights, and commencing legal action to seek penalties was in the public interest.
“We treat allegations of employers taking action to stop or prevent employees from claiming their lawful entitlements very seriously. Adverse action and coercion directly undermine workplace laws and the ability of employees to exercise their lawful rights,” Ms Parker said.
“We are currently investigating a range of underpayment issues in the universities sector, including failures to pay casual academics for all hours worked.”
“Employers should have proactive measures in place to ensure they are meeting workplace laws. If employers become aware of concerns their employees may be being underpaid, the only appropriate response is to check that they are paying their employees correctly and promptly rectify any compliance issues discovered,” Ms Parker said.
The Fair Work Ombudsman is conducting a separate investigation into the alleged underpayment of University of Melbourne casual academic employees. That investigation is ongoing.
At the time the alleged adverse action and coercion breaches occurred, the University of Melbourne had employed the two affected academics on a series of short-term casual teaching contracts – since at least 2016 and 2017, respectively – in its Melbourne Graduate School of Education.
The Fair Work Ombudsman alleges the first adverse action breach and coercion occurred when the academics’ supervisor allegedly threatened not to re-employ them during a Zoom video conference meeting in August 2020.
The Fair Work Ombudsman alleges the second adverse action breach occurred in or around February 2021 when the supervisor decided not to offer one of the two academics any further casual teaching contracts.
It is alleged that the decision was made after the academic asked to be paid for several hours of work she had performed that exceeded the “anticipated hours” in her contract for Summer Semester 2021, and following a number of complaints and inquiries made by the employee to the University since July 2020. It is alleged that the University of Melbourne has subsequently not offered that academic any further teaching work.
The University continues to employ the other academic in its Melbourne Graduate School of Education.
The Fair Work Ombudsman is seeking penalties against the University of Melbourne for the alleged contraventions of the Fair Work Act. The maximum penalty per breach is $66,600.
Under the Fair Work Act, it is unlawful for an employer to take adverse action against a person because a person exercises a workplace right or to prevent them from doing so. It is also unlawful for a person to take or threaten to take any action against another person with the intent to coerce them to not exercise a workplace right.
In addition to penalties, the regulator is also seeking a court order for the University to pay compensation to the two academics for loss arising from the contraventions.
A date for a directions hearing in the Federal Court in Melbourne has yet to be listed.