Application for approval of the Lineage AUS TRS Pty Ltd Allansford Enterprise Agreement 2025.

[1] An application has been made for approval of an enterprise agreement known as the Lineage AUS TRS Pty Ltd Allansford Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lineage AUS TRS Pty Limited Trading AS Lineage. The Agreement is a single enterprise agreement.

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

[3] The United Workers Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] I observe that the following provisions may, in some circumstances, operate in a manner that is inconsistent and less beneficial than particular provisions of the National Employment Standards (NES):

• Clause 23 - Personal/Carer's Leave Notification, compared to Section 107(2)(a) of the Act; and
• Clause 8.1 - Notice of Termination, compared to the serious misconduct contemplated by Section 123(1)(b) of the Act.

However, noting clause 1.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail if an inconsistency between the Agreement and the NES does in fact arise.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 December 2025. The nominal expiry date of the Agreement is 30 September 2028.

[6] After conferring with the parties, I have decided to vary the Agreement. The issue that has arisen concerns the consultation provisions in the Agreement. The bargaining representatives accept that the Agreement does not contain a provision which provides for the consultation with employees concerning their regular rosters or ordinary hours of work. This is contrary to the requirement in subsection 205(1).

[7] The fact that the Act provides at subsection 205(2) a mechanism for addressing the failure to meet the mandatory requirement in subsection 205(1), does not deprive that failure of the characteristic of being a defect or irregularity. It is thus capable of rectification pursuant to section 218A, subject to the proposition that such irregularity or defect has already been remedied by the operation of subsection 205(2). There is no doubt that there is a general capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[1]

[8] However, the variation sought by the parties did more than simply address the defect or irregularity that had been identified. Rather, the desired intention was to replace the existing (and deficient) consultation clause with a clause that read:

"The model consultation term in Schedule 2 of the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement, to the exclusion of other terms dealing with the same subject matter."

[9] The variation was advanced in those terms so as to address the uncertainties that would arise in applying more than one set of consultation obligations to a given set of circumstances. On that basis, a more suitable foundation for giving effect to the variation is section 217 of the Act. Like section 218A, it applies to any enterprise agreement that has been made, so is likewise capable of being utilised in conjunction with an approval decision.

[10] The variations that I order reflect the agreement of the parties and amend Clause 43 of the Agreement as follows:

1. Clause 7.3 is amended to read:

"The model consultation term in Schedule 2 of the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement, to the exclusion of other terms dealing with the same subject matter."

[11] These amendments will take effect on the date of this decision. A copy of the Agreement as varied is provided with this decision.

[1] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

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