Enterprise agreement classifications cannot constrain NES rights, Fair Work Commission confirms

The Fair Work Commission’s decision in Baker v Macquarie University [2026] FWC 3054 has attracted attention because the applicant used AI to draft his submissions and succeeded in his application to convert a teaching-only casual academic position to part-time employment. However, the more significant aspect of the decision for employers is not the conversion outcome itself, but the Commission’s application of a principle already established by the Full Bench in Paper Australia Pty Ltd v Anthony May [2025] FWCFB 224.

In Baker, the Commission confirmed that enterprise agreement provisions cannot operate to constrain or undermine rights granted by the National Employment Standards (NES). Universities should therefore not assume that existing classification structures or job-family provisions provide a complete answer to employee-choice conversion requests. The decision highlights the importance of reviewing whether enterprise agreement classifications remain fit for purpose in a workforce increasingly reliant on regular and recurring teaching work.

At a glance

• Baker largely reflects and applies principles established by the Full Bench in Paper Australia Pty Ltd v Anthony May [2025] FWCFB 224.
• Enterprise agreement classification structures cannot operate to restrict access to NES rights.
• The absence of a suitable classification is not, by itself, a basis to refuse conversion.
• Universities should review their academic classifications and workload models to ensure they can accommodate recurrent teaching work.
• An appeal remains possible, meaning universities should watch for further developments.

The significance of Paper Australia v Anthony May

A critical aspect of the decision in Baker appears at paragraph 37, where Commissioner Crawford relied upon the Full Bench’s reasoning in Paper Australia Pty Ltd v Anthony May. The Commissioner observed:

“I consider the situation here is analogous to that assessed by the Full Bench in Paper Australia Pty Ltd v Anthony May. In that case, the Full Bench determined that the right of an employee under the NES to have a request for flexible work refused only on reasonable business grounds cannot be detrimentally constrained by an enterprise agreement and that an agreement term that does so has no effect, but only to the extent that it detrimentally constrains an employee’s rights to seek access to flexible work under the NES.”

The significance of this passage is that the Commissioner did not approach the dispute as primarily concerning academic classifications or university workforce models. Instead, the matter was framed as one involving the interaction between an NES right and an enterprise agreement provision. Once that framework was adopted, the outcome largely followed established authority. Where an enterprise agreement constrains access to an NES entitlement, the agreement provision has no effect to that extent.

Why the decision matters for universities

Many universities have traditionally relied on enterprise agreement workload models and job-family structures to differentiate casual academics from ongoing employees.

Those workload models commonly allocate academic work across teaching, research, administration and service activities. They often establish distinct academic classifications and prescribe the proportion of work that can be allocated to each category. In some institutions, teaching-only work is predominantly performed by casual academics, while ongoing employees are expected to undertake a broader combination of responsibilities.

The practical lesson from Baker is that those structures cannot be treated as a legal barrier to the exercise of NES rights. If a university’s classification architecture effectively prevents access to employee-choice conversion, the existence of that architecture may not provide a complete answer.

Importantly, this does not mean that enterprise agreements are irrelevant. Rather, universities may need to revisit whether their classifications adequately reflect the reality of modern academic work. The broader strategic question is whether recurrent teaching work that is genuinely ongoing in nature has an appropriate non-casual classification under the enterprise agreement.

A classifications issue more than a conversion issue

Viewed in that way, Baker may ultimately prove to be less significant as a casual conversion case than as a classifications case.

Universities entering enterprise bargaining should review:

• whether recurrent teaching work has an appropriate non-casual classification;
• whether education-focused positions can operate at very small fractions of employment;
• whether workload models appropriately accommodate semester-based teaching patterns; and
• whether existing job-family structures remain aligned with operational requirements.

These questions will remain relevant regardless of whether the decision is upheld on appeal.

Watch this space

The decision does not mean that all teaching-focused casual academics must be converted. Nor does it necessarily require immediate redesign of enterprise agreements. It does suggest that institutions should review whether their current classification structures depend on assumptions that may be difficult to reconcile with NES rights.

The key lesson from Baker is that the Commission was prepared to apply the Full Bench’s reasoning in Paper Australia Pty Ltd v Anthony May to the employee-choice conversion provisions. Universities should therefore focus less on whether a classification currently exists and more on whether their classification framework can accommodate work that, in substance, may no longer be casual.