Ninti One Limited

[2020] FWCA 1950

[2020] FWCA 1950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ninti One Limited
(AG2020/752)

NINTI ONE LIMITED ENTERPRISE AGREEMENT 2019

Clerical industry
COMMISSIONER PLATT	ADELAIDE, 17 APRIL 2020

Application for approval of the Ninti One Limited Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ninti One Limited Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ninti One Limited (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 March 2020.

[3] On 3 April 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 9 April 2020. The undertaking deals with the following topics:

•  The Agreement will be read and interpreted in conjunction with Long Service Leave (LSL) legislation that is applicable in each State and Territory. Where there is an inconsistency and the LSL Legislation provides a greater benefit to the employee, the legislation will apply to the extent of the inconsistency. This includes employees who resign their employment between 7 and 10 years from receiving pro rata LSL on termination

•  Where there is inconsistency regarding the circumstances under which redundancy provisions apply (specifically any inconsistency between Clause 62.2 of this Agreement and s.123(3)(b) of the Act), and the Act provides a greater benefit, the Act will apply to the extent of the inconsistency.

•  Where there is inconsistency regarding the right of the employer to recover monies where an employee fails to give the required notice (specifically any inconsistency between Clause 58.2 of the Agreement and s.55 of the Act), and the Act provides a greater benefit, the Act will apply to the extent of the inconsistency

•  Employees who (but for this Agreement) would be subject to the provisions of the Clerks Private Sector Award 2010 shall be entitled to:

•  Overtime rates and penalties where overtime is worked in accordance with Clause 27 of the Clerks Private Sector Award 2010

•  The entitlements contained in Clause 28 of the Clerks Private Sector Award 2010 where shift work is performed

•  The definition of shift work shall be as detailed in Clause 29.2 of the Clerks Private Sector Award 2010 (which shall also apply for the purposes of the National Employment Standards)

•  Allowances in accordance with Clause 19 of the Clerks Private Sector Award 2010

•  Employees who (but for this Agreement) would be subject to the provisions of the Market and Social Research Award 2010 shall be entitled to:

•  Overtime rates and penalties where overtime is worked in accordance with Clause 18 of the Market and Social Research Award 2010

•  Allowances in accordance with Clause 16 of the Market and Social Research Award 2010

•  Any deduction of monies under the Agreement shall be subject to the operation of s.324, 325 and 326 of the Act.

•  The employer undertakes not to engage any employee under the Agreement in a classification not contained in those listed in Clause 7.2 of the Agreement.

•  The employer will not engage shift-worker employees under the Agreement.

•  Fortnightly pay reconciliation will be conducted (within 14 days of the end of the company’s fortnightly pay cycle) for all employees, to ensure that they are not paid less than what they would be entitled to under the Market and Social Research Award 2010 and the Clerks Private Sector Award 2010. Any shortfall in wages and/or entitlements will be paid with an extra 5% to the employee in the next pay period.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 16 April 2024.

COMMISSIONER

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