Lion Pty Ltd [2026] FWCA 165 (30 January 2026)

Application for approval of the J Boag & Son (Brewery Technicians) Enterprise Agreement 2026

[1] An application has been made for approval of an enterprise agreement known as the J Boag & Son (Brewery Technicians) Agreement 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lion Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that 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. The undertakings are taken to be a term of the agreement.

[3] The United Workers Union, being a bargaining representative for the Agreement, has indicated it is supportive of the undertaking being given. In addition, the United Workers Union 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] Subject to the undertakings referred to above, 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2026. The nominal expiry date of the Agreement is 31 December 2027.

[6] The Agreement was one of many that had been lodged for approval prior to the decision of the Full Court of the Federal Court in CFMEU v. AI Group[1], which is material to the question of what constitutes a delegates' rights term within the meaning of the Act. The parties were in invited to consider the amendments that were necessary to bring their Agreement into conformity with the requirements of a delegates' right term as elucidated by the Court, on the basis that I considered that the areas of concern I had identified were defects that were amendable to being addressed by a variation made under section 218A of the Act.

[7] There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[2] The variations in this case were the subject of some correspondence between my Chambers and the parties and reflect an agreed position between the bargaining representatives to amend clause 28 of the Agreement. I am satisfied they address the defect identified and are appropriate in the circumstances.

[8] A copy of the amendments made to clause 28 is attached below at Annexure B.

[9] I am satisfied that the amendments to clause 28 of the Agreement should be made and that it is appropriate to do so pursuant to section 218A of the Act. The amendments to clause 28 are made in accordance with a corrected copy of the Agreement, filed by the Employer on 28 January 2026. The Agreement attached to this Decision is the Agreement as varied and will operate from 6 February 2026.

[1] [2025] FCAFC 187

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

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