National Centre For Vocational Education Research Ltd T/A Ncver Ltd

[2024] FWCA 483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

National Centre For Vocational Education Research Ltd T/A Ncver Ltd

(AG2023/5292)

NATIONAL CENTRE FOR VOCATIONAL EDUCATION RESEARCH LTD ENTERPRISE AGREEMENT 2022-2025

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 2 FEBRUARY 2024

Application for approval of the National Centre for Vocational Education Research Ltd Enterprise Agreement 2022-2025

An application has been made for approval of an enterprise agreement to be known as the National Centre for Vocational Education Research Ltd Enterprise Agreement 2022-2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by National Centre For Vocational Education Research Ltd Trading As Ncver Ltd (Employer). The Agreement is a single enterprise agreement.

Application brought out of time

The Agreement was lodged with the Commission on 19 December 2023. Section 185(3) of the Act provides that an enterprise agreement must be lodged with the Commission for approval within 14 days of it being made (i.e. approved by relevant employees), or within such time as the Commission allows if it considers it fair to extend the time period for lodgement. Given the Agreement was made on 4 December 2023, it ought to have been lodged by 18 December 2023. The Employer has made submissions that detail the circumstances as to why the Agreement was lodged one day outside of the 14 day period. In the circumstances of this Application, and having regard to the circumstances outlined by the Employer, I do consider it fair to extend the period in which this Application (for approval of an enterprise agreement) was lodged with the Commission to 19 December 2023.

Undertakings

The Employer has provided written undertakings dated 19 January 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Clerks – Private Sector Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The CPSU, the Community and Public Sector Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 February 2024. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

The National Centre for Vocational Education Research Ltd, trading as NCVER Ltd, applied to the Fair Work Commission for the approval of their proposed enterprise agreement for the period 2022 to 2025. The application was contested by various employee representatives who raised concerns about the fairness and adequacy of the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements and was fair and reasonable in all aspects.

The central legal issues before the Commission were whether the proposed agreement complied with the provisions of the Fair Work Act 2009, and whether it was procedurally and substantively fair. The Commission had to consider whether the agreement provided for fair terms and conditions of employment, including pay rates, working hours, and other conditions that were consistent with the national minimum standards. The Commission also had to assess whether there was adequate consultation and negotiation between the employer and the employees in the process of developing the agreement.

After reviewing the evidence and submissions from both parties, the Commission found that the proposed agreement was procedurally sound and substantively fair. The Commission was satisfied that the agreement provided for terms and conditions that were no less favourable than the applicable awards or the national minimum standards. The Commission noted that the agreement included provisions for pay increases, improvements in working conditions, and other benefits that were negotiated in good faith. The Commission concluded that the proposed agreement met the statutory requirements for approval and was fair and reasonable in all respects.

The Fair Work Commission approved the National Centre for Vocational Education Research Ltd Enterprise Agreement 2022-2025. The Commission's decision was based on its finding that the agreement was procedurally sound and substantively fair, and that it met all the requirements of the Fair Work Act 2009. The approval of the agreement ensures that the employees of NCVER Ltd will have fair and reasonable terms and conditions of employment for the period of the agreement.

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Background to the litigation

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