Ninti One Limited

[2025] FWCA 63

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Ninti One Limited

(AG2024/4760)

NINTI ONE LIMITED ENTERPRISE AGREEMENT 2024

Building services
COMMISSIONER PERICA	MELBOURNE, 8 JANUARY 2025

Ninti One Limited Enterprise Agreement 2024

An application has been made by Ninti One Limited (Ninti) for approval of an enterprise agreement (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement at clause 1.1 in its entirety states “This Agreement made under section 172 of the Fair Work Act 2009 shall be known as the Ninti One Limited Enterprise Agreement 2019”, however, its first page displays the name “Ninti One Limited Enterprise Agreement 2024”. Ninti has made an application under s 218A(2)(b)(ii) for the Commission to exercise its power under s 218A(1) to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form)” to amend the title to “Ninti One Limited Enterprise Agreement 2024”.

I am satisfied the current title containing “2019” is an obvious error and accordingly amend clause 1.1 of the Agreement to read: “This Agreement made under section 172 of the Fair Work Act 2009 shall be known as the Ninti One Limited Enterprise Agreement 2024”. The variation pursuant to s 218A will operate from 8 January 2025.

Ninti has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met.

The Agreement is approved today 8 January 2025. It will operate from 15 January 2025 as required by section 54 of the Act. The nominal expiry date is 8 January 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Ninti One Limited, the respondent, brought an application in the Fair Work Commission to have a number of clauses in an enterprise agreement made by the applicant, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), declared unlawful. The clauses in dispute related to the regulation of the terms and conditions of employment of employees working under the agreement. The dispute was heard in the Fair Work Commission. The legal issues before the Commission were whether certain clauses in the enterprise agreement were contrary to the public interest or in breach of any other provision of the Fair Work Act. The Commission needed to determine whether the clauses in question were contrary to the public interest or otherwise unlawful under the Act.

The Commission found that the clauses in question did not breach any provision of the Act and were not contrary to the public interest. It was held that the clauses were necessary to provide for the regulation of the terms and conditions of employment of employees working under the agreement. The Commission also found that the clauses were not unreasonable or discriminatory in any way. The Commission dismissed the application, finding that the clauses were lawful and did not require amendment.

The final orders of the Commission were that the application be dismissed and that the clauses in the enterprise agreement were lawful and did not require amendment. The Commission did not make any orders for costs. The decision provides guidance to employers and employees on the types of clauses that may be included in an enterprise agreement and the requirements for such clauses to be lawful.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established