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Ms Kelly rests now. And we've finished up. Justice Snaden reserves judgment for 2025. Thanks for following this thread.

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Ms Kelly responds. She observes that the Fair Work Act requires records to meet the regulations prescribed in s535, incuding the rate of pay, which Monash clearly has not.

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There is now some confusion about the statement of claim, and whether it has info about any of the hours of the tutors. Mr Bourke then concedes that the Univrersity' defence here will stand or fall on the construction of the Agreement. "We haven't kept records," he mumbles.

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Mr Bourke now says the University denies it didn't keep records of the tutors' pay. His honour seems puzzled about this. Do you have the records, he asks, they're not in evidence. Well, we have them, Mr Bourke says, we know when the tutors kept their consultation hours.

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Now we're discussing the QUBE v CFMEU case, which was also about standing (but was about a different issue, in that case it was a variation application). The judge actually sat on that case, so he doesn't seem convinced by Mr Bourke's arguments on this

Reposted by NTEU Monash

Why would the legislature seek to limit workers' rights to seek remedies, the judge asks. There's little guide, Mr Bourke concedes. But it might be about limiting disputation. Elsewhere in the Act, he notes, "applies" means where an EBA is in operation.

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Mr Bourke raises the point about tutorial being a piece rate. The University could give directions about how the tutorial could be delivered. If my learned friend's argument is correct, if the Uni issues any directions about associated work, it would be Other Required, this is "improbable"

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Justice Snaden asks Mr Bourke: isn't it just that this is some of the work that may be done by the tutor, and if it is done, it would be associated, and not paid for? Mr Bourke repeats his point that it is required work as part of the tutorial engagement.

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Mr Bourke discusses ad hoc meetings. These are required too, Mr Bourke says. "Why?" asks his honour. "Everything is required," Mr Bourke replies. His honour does not seem convinced.

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Mr Bourke rebuts the NTEU's argument that the University can't give lawful and reasonable directions about associated work. His honour says the Q is whether the consequences of lawful and reasonable is that it becomes liabe for payment. Mr Bourke says this doesn't mean directions can't be given

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Mr Bourke has handed in a 31-page written closing submission. Ms Kelly objects to Bourke submitting a written closing. It is unfair, she argues, that one party has handed in a settled, footnoted document.

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Summing up, Ms Kelly concudes, if his honour accepts the NTEU's construction, then these teachers have not been paid for these consultations, and Monash Uni has therefore breached the EBA and the Act

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Moreover, Ms Kelly notes, there a range of practices about paying tutors at the university. Some Schools at Monash *do* pay students for consultation, so it's clear there's no common custom and practice here.

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So, Kelly argues, contemporaneous is *not* a whole extra hour of scheduled consult time, which is not associated with the particular tutorial, and could be about the entire unit, or indeed student welfare etc

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If you do no preparation for the tutorial, you get paid the same as if you do 10 hours of preparation for the tutorial, Kelly observes.

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Ms Kelly argues, the rolled-up rate is an industrial compromise. Academic work is indeterminate, it does not lend itself to an hourly rate. The rolled-up rate is paid for the hour. "You've got to deliver the product, and the product is an hour-long tutorial", Snaden says. Kelly agrees.

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Isn't this lots of work, asks Justice Snaden? Judges don't get paid for everything we do, he says. Ms Kelly agrees, barristers don't get paid for their professional development. But she argues, a wage employee is in a very different position.

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Is it a piece rate, Justice Snaden asks? A tutorial is a piece rate, Ms Kelly agrees. So how will the history assist, he asks. She says this structure of payment is not new. If you perform a tutorial, you're paid for the tutorial; if you are paid for "Other Required" you are paid by the hour

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Prof Mills says the reasoning given in the email was incorrect, tutors were still required to do some consultation.

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Ms Kelly asks Prof Mills whether there was a document that set down this decision. No, says Prof Mills. Kelly asks was there a decision to require unit coordinators to hold student consultations? She shows Mills an email about tutors just being asked to meet the “letter of the EBA” and not consult.