[Part 1] Academic Workloads: Issues and Considerations for Enterprise Bargaining and Wage Compliance

Introduction

With many Australian universities commencing bargaining this year and early next year, ‘workloads’ - and in particular academic workloads and the associated remuneration model - will again feature heavily.  Although the issue of academic workloads is one of the NTEU’s current top priorities, the issue has been a source of ongoing complexity and disputation between unions and universities for decades.

The issue is now being re-enlivened in the context of increasing constraints on university finances and continued scrutiny from ‘wage compliance’ issues.  Despite this pressure, making even small changes to the academic workload model involves a number of competing and difficult considerations, including impacts to academic planning, operational and compliance aspects, and of course potential financial consequences.  

This article explores what sits behind some of that complexity and the impacts universities may wish to consider when heading into bargaining, including:

1. The history and nature of academic work, its management and the development of the associated remuneration model;

2. Recent challenges to the model and trends in bargaining;

3. Recent judicial consideration of these issues; and

4. Potential downstream issues and risks associated with making changes to the model.

This article discusses the issue in the context of continuing and fixed term academic employees. We will be providing a follow up in the coming weeks covering casual academic employees’ work and hours issues.

Part 1 - Continuing and Fixed-term Employees

The Nature of Academic Work, Management & Remuneration

Academic staff are subject to their own workload management and remuneration structures that are different to other workforces, including their own university professional colleagues.  The Fair Work Commission (FWC) Full Bench recently had to consider some of these aspects in National Tertiary Education Industry Union v Flinders University of South Australia [2025] FWCFB 62 (the Flinders Case):

“The subject of the hours of work for academic staff is dealt with differently [than professional staff]. That is, as a matter of common knowledge, unsurprising. Academic work is frequently demanding. It is also, to a significant degree, self-directed and autonomous. The allocation of face-to-face teaching may be of definite timing and duration. However, other work required of academic staff is of a different nature and not naturally amenable to strict prescription of daily or weekly hours of work. This is likely to include work involving preparation, research, supervision, administrative duties, professional development and community engagement… .”[1] 

As many universities and academics themselves know, academics generally pursue their particular discipline or research focus as a life-long passion, both to innovate, discover and create new knowledge, as well as to advance their own domestic and international standing and their careers. Subject to any teaching, collaboration and/or administrative responsibilities, academics (as the Flinders Case notes( generally set their own hours, working locations and method of work.

It is also a tenet in the sector that the self-direction of academic work is both a privilege and benefit to academia and, given the highly specialised nature of the work and the expertise of those involved, fundamental to its nature.  Accordingly, universities and academics have long held that the concept of the university regulating when an academic’s work can be performed and how much work should be performed is fundamentally inconsistent with the character of an academic’s employment.[2]

However, high levels of autonomy in a highly competitive field (where the expectation and competition to obtain research funding and publish results can be intense) can result in some academics working long hours. This, coupled with the union’s mandate to seek additional pay and benefits for its members, has pushed the issue of academic workloads and hours once again to the forefront of NTEU campaigning.

The Position in the Award

The autonomous and semi-autonomous character of academic work has been acknowledged in every Higher Education salary determination and award since at least 1976 [3], including through the 2010 award modernisation and the present Higher Education Industry—Academic Staff—Award 2020 (the Award). It has also been reflected in all university enterprise agreements since bargaining commenced in the higher education sector in the mid-1990s.[4]

At all times the Award has provided for an annual salary as compensation to perform the entirety of their role as an academic staff member, and has not contained:

• a span of hours (i.e. the times of day between which an employee can work);

• overtime; or

• penalty rates.

The Award does now contain an ‘ordinary hours’ clause[5], which states that for the purpose of the National Employment Standards (NES), an academic’s ordinary hours of work under the Award are 38 hours per week. The inclusion of this clause arose from a specific legislative requirement at the time of making the modern awards for the Commission to include in each modern award the “ordinary hours of work for each classification of employee covered by the modern award for the purpose of calculating entitlements in the proposed NES".[6]

This clause does not, however, operate as a complete cap on hours.[7] Rather, the underlying section of the NES (s62) states, an employer must not request or require an employee to work more than 38 hours a week unless the additional hours are reasonable. The section enables an employee to refuse a request or requirement to work unreasonable hours and sets out a number of factors that are required to be taken into account, including the nature of the employee's role, level of responsibility and "any other relevant matter". It also does not prohibit an employee from working more hours at their own volition.

The Position in University Enterprise Agreements

Given the approach in the Award, most but not all university enterprise agreements also do not specify a span of hours, overtime or penalty rates for academic staff.

Most enterprise agreements do, however contain a clause which reflects the ‘ordinary hours’ clause of the Award, i.e. that an academic’s ordinary hours are 36.25 per week and/or 1,725 hours per annum (36.26 hours per week with an adjustment for 4 weeks annual leave and public holidays), or similar.

The Union Position

The NTEU is currently campaigning for a complete cap on academic hours at 36.75 hours per week, together with a specified span of hours from 8am to 6pm, and ‘compensated’ overtime. [8]

In response to these claims, some universities have in recent years agreed to the introduction of ‘workload management’ clauses, which provide for a review process regarding workload allocation and management. However, many of these clauses are focused (or intended to be focused) on the allocation of an academic’s work as between teaching, research and leadership/administrative duties – a common point of contention in academic life – and not the number of hours an academic works or when they work them.

The NTEU have challenged this interpretation recently however and argued that a workload management clause is intended to be a cap on hours.

The Impact of the Flinders Case and Related Precedents

In the recent matter of Flinders, the NTEU argued a workload management clause operated as a ‘cap’ on the number of hours an academic can work, and hours worked in excess of 1,725 per hours a year should receive additional compensation.

The Flinders case involved three academics at Flinders University whom the NTEU argued had been allocated, and in turn worked, more hours than 1,725 hours per year, which the NTEU argued was in breach of the relevant Flinders University Enterprise Agreement.

As with most university enterprise agreements, the Flinders University Enterprise Agreement did not specify daily or weekly hours of work, nor did it specify an ordinary ‘span of hours’ or the provision for overtime payments. It did, however, contain a detailed ‘workload management’ clause which through 28 detailed subclauses sought to regulate the allocation and type of academic work through a workload model.

Relevantly, this workload model contained subclause 67.19 which stated that the:

“Annual hours of work for a full-time academic are 1725, based on a nominal 37.5 hour working week. Individual workload allocation will be such that a full-time academic is able to undertake their workload in 1725 hours per year…”

Over time, in order to comply with the workload management clause, the University developed a complex framework which used what it referred to as ‘Workload Allocation Units’ (WAUs) to govern the allocation of different types of work and activities to academics.

A key feature of the model was that that a full-time workload was designated to be 30 WAUs. The composition of the 30 WAUs included teaching, research and creative activities and service and leadership responsibilities. The workload model aggregated and calculated by the University’s Workload Management System, drawing on various sources of data, including payroll, research income and publications, syllabus timetabling, the Student Management System and Flinders Business Analytics.

The NTEU argued that the three academics had each been regularly allocated in excess of 30 WAUs, which the NTEU argued translated into excessive hours (although was not able to give evidence as to the precise number of additional hours) and therefore was in breach of clause 67.19.  

Ultimately the FWC Full Bench held that:

• the WAUs did not translate directly into hours;

• there was no evidence the academics worked more than 1,725 hours per year;

• but even if the academics had worked more than 1,725 hours per year, this would not be determinative of a breach of the EA as:

“The entitlement of an academic is to be allocated a workload that should be able to be undertaken within 1,725 hours per year. A particular academic may work more or less than1,725 hours in a particular year for a range of reasons without any contravention of the Agreement having occurred. However, an academic should not be allocated a workload that cannot reasonably be undertaken within 1,725 hours per year.”[9]

• there was no evidence submitted that the University allocated the three academics more work than could reasonable be performed in 1,725 hours per year (and therefore no breach); and

• in any event, there was no mechanism for overtime or other compensation for additional hours in the EA.

  
  

The decision is important for universities as it confirms that, in respect of the annual and weekly ‘ordinary hours’ provisions in enterprise agreements:

1. The limitation relates only to what a university as employer can request or require, it has no bearing on what work an academic may elect to perform on their own volition.

   
   

   This follows the logic in the Federal Court’s decision in Dorsch v Head Oceania Pty Ltd [10]. In that case, the Court held that an employer did not breach the equivalent provision of the NES (s62) when an employee worked more than 38 hours per week, unless the employer had requested or required them to work those additional hours. Relevantly the Court held:

   
   

“Where an employee chooses to work additional hours without the approval and/or knowledge of the employer for professional development or personal gain then he or she cannot complain of an alleged requirement to work additional hours.” [11]

In contrast, there is the Federal Court’s 2023 decision in Australian Salaried Medical Officers' Federation v Peninsula Health [12]. In this case the Court held that junior doctors were to be paid overtime in circumstances where:

• the doctors’ enterprise agreement provided for the payment of authorised overtime;

• the junior doctors were instructed and required to perform tasks that could not reasonably be performed in their ordinary hours, and the hospital was aware of this.

In these circumstances, the Court held that such instruction or requirement amounted to an implied authorisation of overtime.

2. The provisions require a university not to allocate work beyond what a reasonable person of the requisite skill level could perform within 1,725 hours per year. It does not extend to determining whether a specific individual can (or indeed, does) perform the work within those hours

3. The FWC will not read into enterprise agreements an entitlement to overtime or other compensation for additional hours worked by academics where there is no overtime provision.

Further Challenges to Self-directed Academic Work: Academic Overtime

In response to the NTEUs ‘workload management’ campaign, some universities have recently  agreed to the introduction of overtime and similar provisions for academics where they have been requested to work more hours than their ‘usual’ workload and/or on weekends.

This represents a major shift in the remuneration model for academics described above and may result in an increased number of disputes regarding workload and hours of work. This is because in these instance there is now an express right to additional payment for authorised overtime (and often at higher rates) and therefore raises the question as to what work should be characterised as ‘authorised overtime’ (as in Peninsula Health).

It also raises wage compliance and operational considerations that have to be addressed such as:

• What records should be kept by the university to manage and prove whether overtime was authorised or not (including rebutting arguments of implied authorisation as was the case in Peninsula Health);

• What further management oversight and support systems and processes are needed to manage requests and claims for additional work / weekend overtime – e.g. timesheets and/or more detailed scheduling / rostering?

Conclusion and Key Takeaways

• The remuneration model for continuing and fixed term academic employees (as reflected in successive wage determinations, awards and university enterprise agreements since at least 1976) operates on the premise that academics are autonomous professionals capable of and willing to manage their own hours, work locations and workloads.  

  
  

• Academia is a competitive profession with necessarily high expectations of excellence and autonomy. This can result in high productivity and, at times, high workloads.  

  
  

• The workloads aspect of this dynamic has been a perennial source of disputation between universities and unions, the latter arguing that academics need firm ‘caps’ on work hours, a mandated daily ‘span of hours’, and overtime entitlements.

  
  

• Over the years, Universities have made some concessions to union claims regarding academic workloads and now most University enterprise agreements contain some form of ‘workload management’ provision.  However, these provisions generally do not go so far as to cap hours or provide for overtime but instead focus on the mix of work to be allocated to academics and the process of allocation.

  
  

• A recent NTEU FWC challenge to seek compensation for additional hours worked by academics was dismissed by the FWC Full Bench on the basis that a clause stating ‘an academic’s annual hours are 1,725 hours per year’ does not operate as a cap on hours which can be / should be worked by an academic employee.

  
  

• Some Universities have, however, recently agreed to introduce overtime for ‘authorised’ additional or weekend academic work. The impacts of these overtime clauses are yet to be seen but given the Peninsula Health case we think this presents an increased risk of clams and disputes for implied overtime (and wage underpayment).

  
  

• While the unions may be well intentioned focused on their members’ overall working conditions, focusing on the proxy of “workload” (via the ‘span’ and number of hours) could have broader unintended consequences, not simply financial. For example, what broader impact will additional management oversight and closer direction over work have in the context of a professional workforce that prizes autonomy so highly?

  
  

• With bargaining this year and next, universities should consider carefully any changes to the academic remuneration and management model, particularly in respect of any proposals to impose ‘caps’ on hours, impose restrictions on when academic work can be performed (such as introducing a daily ‘span of hours’), and introduce overtime for academic work.

  
  

• Universities should also weigh up the potential flow-on impacts of any such changes, including:  

  • increased compliance requirements, managerial oversight, record keeping and rostering requirements (including upgrading systems and processes) to manage authorised vs unauthorised work and overtime;

  • financial impacts of remunerating academic overtime;

  • impacts on productivity and academic recruitment / retention associated with less autonomy over when, where and how work is performed, including the likely increased administrative burden for academics of keeping more detailed timecards, rosters and other time and work management type tools.

CONTACT US

This is commentary published by Makeham Flaherty for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories.

Makeham Flaherty 2025.

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[1] National Tertiary Education Industry Union v Flinders University of South Australia [2025] FWCFB 62 [11]

[2] Submissions on the Higher Education Industry – Academic Staff – Award 2010 (MA000006) and Higher Education Industry – General Staff – Award 2010 (MA000007) Four Yearly Review of Modern Awards, filed on behalf of the Group of Eight Universities dated 6 June 2016.

[3] The Academic Salaries Tribunal Determination and Report in February 1976

[4] Ibid

[5] Higher Education Industry – Academic Staff – Award 2010 (MA000006), section 15 

[6] Ministerial Request under s. 576C. Part of the request of the Minister, published by the Commission on 2 April 2008

[7] See Dorsch v Head Oceania Pty Ltd [2024] FCA 162

[8] See, for instance: https://www.nteu.au/nteu/key_issues/Bargaining_Key_Claims/Fair%20Workloads.aspx

[9] National Tertiary Education Industry Union v Flinders University of South Australia [2025] FWCFB 62, [59]

[10] Dorsch v Head Oceania Pty Ltd [2024] FCA 162

[11] Dorsch v Head Oceania Pty Ltd [2024] FCA 162, [336]

[12] Australian Salaried Medical Officers' Federation v Peninsula Health [2023] FCA 939