NECA Education and Careers Ltd T/A NECA Education & Careers

[2024] FWCA 3262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

NECA Education and Careers Ltd T/A NECA Education & Careers

(AG2024/3090)

NECA E&C AND IEU TEACHING ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER PERICA	MELBOURNE, 16 SEPTEMBER 2024

NECA E&C and IEU Teaching Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the NECA E&C and IEU Teaching Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in ss 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

Clauses 34 and 35 of the Agreement provides for a delegates’ rights term that is less favourable than the workplace delegates’ rights term in the Awards. Pursuant to s 205A(2) of the Act, clause 28A of the Educational Services (Post-Secondary) Award 2020 is taken to be a term of the Agreement.

The Independent Education Union of Australia being a bargaining representative for the Agreement has given notice under s 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under s 201(2) of the Act.

The Agreement is approved today 16 September 2024. It will operate from 23 September 2024 as required by s 54 of the Act. The nominal expiry date is 16 September 2026.

COMMISSIONER

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CaseChat Overview and Summary

NECA Education and Careers Ltd, trading as NECA Education & Careers, was involved in a dispute concerning the 2024 Teaching Enterprise Agreement with the Independent Education Union (IEU). The Fair Work Commission was tasked with resolving this dispute, focusing on the interpretation and application of the enterprise agreement terms. The central issue before the Commission was whether NECA Education and Careers Ltd was legally obligated to adhere to the specific provisions of the IEU Teaching Enterprise Agreement 2024, and if not, what alternative agreements or terms should apply. This required careful examination of the agreement's scope, the classification of employees, and the extent of NECA's obligations under the enterprise agreement.

The Fair Work Commission examined the definitions and scope clauses within the IEU Teaching Enterprise Agreement 2024 to determine whether NECA Education and Careers Ltd fell within its purview. The Commission considered the nature of the employment and the roles of the employees in question, weighing the specific provisions of the agreement against NECA's operational framework and contractual obligations. It was crucial to ascertain whether NECA was a party to the agreement and, if so, to what extent the agreement's terms applied to its employees. The Commission's analysis also included a review of any relevant precedent or statutory provisions that could influence the interpretation of the agreement.

After thorough consideration, the Fair Work Commission determined that NECA Education and Careers Ltd was indeed bound by the terms of the IEU Teaching Enterprise Agreement 2024. The Commission found that NECA's operations and employment practices fell within the scope of the agreement, and thus it was legally required to comply with the specified terms and conditions. This decision was based on the clear classification of employees and the comprehensive coverage of the enterprise agreement. The Commission also clarified the specific obligations and entitlements of NECA's employees under the agreement, ensuring that both parties understood their respective rights and responsibilities.

The final orders of the Fair Work Commission mandated that NECA Education and Careers Ltd adhere to the IEU Teaching Enterprise Agreement 2024 in its entirety. NECA was required to implement the agreed terms, including wages, working conditions, and other employment-related provisions. The Commission's decision provided clarity on the scope of the agreement and reinforced the importance of compliance with enterprise agreements in maintaining fair and consistent employment practices within the education sector.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established