//
[34]
austlii:cth/FWCA/2026/210
General information, not legal advice.
FWCA
2026-02-03
Original judgment source is linked above.
s.185 - Application for approval of a single-enterprise agreement
METCASH TRADING LIMITED HUNTINGWOOD FRESH PRODUCE ENTERPRISE AGREEMENT 2025
Application for approval of the Metcash Trading Limited Huntingwood Fresh Produce Enterprise Agreement 2025
[1] Metcash Trading Limited has applied for approval of a single enterprise agreement known as the Metcash Trading Limited Huntingwood Fresh Produce Enterprise Agreement 2025 (Agreement). The application is made under section 185 of the Fair Work Act 2009 (Act).[1]
[2] Section 205A(1) requires that an enterprise agreement contain a delegates' rights term for workplace delegates to whom the agreement applies. Section 12 defines a "delegates' rights term" as one which "provides for the exercise of the rights of workplace delegates". The note to that definition states: "The rights of workplace delegates are set out in section 350C, and a delegates' rights term must provide at least for the exercise of those rights."
[3] The employees to whom the Agreement applies are covered by the Storage Services and Wholesale Award 2020 (Award). Clause 29A of the Award is titled "Workplace delegates' rights". Clause 29A was inserted into the Award following a statement issued by the Full Bench of the Commission on 28 June 2024 (2024 Statement), which stated that a majority of the bench had decided to vary all modern awards to include a delegates' rights term in the form set out in an attachment to that statement.[2] Clause 29A was consistent with that attachment.
[4] However, on 17 December 2025, the Full Court of the Federal Court found that the delegates' rights terms in nine modern awards (not including the Award), inserted into those awards pursuant to the 2024 Statement, were affected by jurisdictional error: Construction, Forestry and Maritime Employees Union v Australian Industry Group[3] (Full Court decision). The Full Court quashed the determinations made by the majority of the Full Bench varying the relevant awards to include a delegates' rights term.
[5] In a statement issued on 23 December 2025 (2025 Statement), the Full Bench of the Commission observed:[4]
"[10] The Full Court decision requires that the Commission to take urgent steps to address the deficiencies in the delegates' rights terms identified by the Court. Section 149E of the FW Act requires that each modern award include a delegates' rights term for workplace delegates covered by the award. With respect to the nine modern awards the subject of the Federal Court proceedings, those awards now do not include a delegates' rights term of any description. The delegates' rights terms inserted into other modern awards were in the same terms and the status of those terms is also now uncertain." (My emphasis)
[6] The Full Bench went on to express its provisional view that all modern awards should be varied to include a delegates' rights term in the form set out in an attachment to the 2025 Statement "to address the deficiencies identified by the Full Court".[5] The Full Bench stated that it proposed to vary those awards not subject to the Full Court decision on its own initiative under section 160(1) to remove an ambiguity or uncertainty or to correct an error. Interested parties were invited to make submissions on these matters.
[7] On 23 January 2026, the Full Bench handed down its decision, in which it determined that all modern awards would be varied to include a delegates' rights term in the form of Attachment 3 to that decision (Full Bench decision).[6]
[8] The Agreement was made on 18 December 2025.[7] Clause 40 of the Agreement is titled "Workplace Delegates Rights". It is in largely the same terms as clause 29A of the Award as it appeared at that time.
[9] In light of the Full Court decision, clause 40 of the Agreement gives rise to the following concerns (Concerns):
(1) Clause 40.1 purports to limit a workplace delegate's right of representation to "eligible Employees", who are defined as being "members and persons eligible to be members of the delegate's organisation who are employed by the Company in the enterprise" (clause 40(1)b.). As the Full Court observed, having regard to section 350C, "the delegates' rights terms must proceed on the basis that the workplace delegate is entitled to represent the industrial interests of all members of the organisation, and persons eligible to be members, who work in the enterprise or regulated business in which the delegate works, regardless of whether they are employees of the delegate's employer".[8]
(2) Clause 40.2(1) provides that a workplace delegate "may communicate with eligible Employees for the purpose of representing their industrial interests under clause 39(1)". There is no "clause 39(1)" in the Agreement. Clause 39 is titled "Union Matters" and in broad terms deals with the recognition of union delegates (clause 39.1) and with union meetings (clause 39.2). Having regard to the fact that the genesis of clause 40 is the Award provision, it is reasonably apparent that clause 40.2(1) was intended to refer to the right of representation in clause 40.1.[9] Further, section 350C(3) entitles the workplace delegate to communicate with members or persons eligible to be such members in relation to their industrial interests. That is "different to and wider than" the phrase "for the purpose of representing their industrial interests".[10]
(3) Clause 40.5(1)(a) provides that when exercising their rights under the clause, a workplace delegate "must comply with their duties and obligations as an Employee". Clause 40.5(1)(c) provides further that they must not "hinder, obstruct or prevent the normal performance of work". Such terms "impermissibly limit the scope of workplace delegate's rights that are otherwise provided for by the delegates' rights term".[11]
[10] If clause 40 does not meet the requirements of section 350C, it is not a "delegates' rights term" (as defined in section 12) for the purposes of section 205A(1). However, it does not follow that the Agreement is incapable of approval. As the Full Bench observed in Application by John Holland Pty Ltd and Bouygues Construction Australia Limited:[13]
"The FW Act does not explicitly state any particular consequence of non-compliance with s205A(1) and, on one view, proceeds on the premise that the operation of s205A(2) is the means by which non-compliance is rectified... In any event, the Commission remains obliged to comply with the 'basic rule' in s186(1) - that is, it must approve an agreement if the requirements set out in ss186 and187 are met."
[11] Section 205A(2) provides that if, when an enterprise agreement is approved, its delegates' rights term is less favourable than the delegates' rights term in one or more modern awards that cover the workplace delegates, the term in the enterprise agreement has no effect and the most favourable term of those in the modern awards, as the Commission determines, is taken to be a term of the enterprise agreement.
[12] However, clause 40 of the Agreement is more favourable for workplace delegates than clause 29A of the Award in at least one respect. Clause 40.4(3) provides that workplace delegates are entitled to a maximum of five days of paid time for initial training and three days in each subsequent year. The Award allows for only one day per year after the initial training (clause 29A.8).
[13] Despite the requirements of sections 186 and 187 being met, approval of the Agreement in its current form would require me to accept that the parties would be left with a non-compliant instrument through no fault or neglect on their part. That is unsatisfactory.
[14] The question which arises is whether, and if so how, the Concerns might be addressed. For the following reasons, I consider that the circumstances allow and call for the Commission to exercise on its own initiative its discretion to vary the Agreement under section 218A.
[15] Section 218A(1) empowers the Commission to "vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form)". The section is "confined to the remediation of clearly apparent and unintentional mistakes in circumstances not susceptible to controversy".[14]
[16] Having regard to the Full Court decision and the Full Bench decision, the Concerns are clearly apparent. They are also unintentional mistakes: at the time the Agreement was made, its delegates' rights term was consistent with that in the Award. The Concerns do not necessarily involve an "error", to the extent that the clause reflects what the parties intended it to say. However, given the Full Court decision, they are arguably defects and certainly irregularities.
[17] Section 218A was introduced into the Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 stated:
"772. This Part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:
773. This policy implements one of the outcomes of the Jobs and Skills Summit in relation to boosting job security and wages, and creating safe, fair and productive workplaces (ie removing unnecessary complexity for workers and employers).
775. New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made." (My emphasis)
[18] Section 218A(1) provides for the variation of "an enterprise agreement". An enterprise agreement is made when a majority of the employees to be covered by it case a valid vote to approve it (section 182(1)). Nothing on the face of section 218A requires the agreement also to have been approved by the Commission and there is no obvious reason to read such a condition into the provision.[15] That is, there seems no reason why the Commission could not exercise its discretion under section 218A to correct errors in an enterprise agreement as a means of facilitating its approval and to ensure that, once approved, it is compliant with the Act.[16]
[19] Applying section 218A in that way would be consistent with the removal of "unnecessary complexity in the agreement-making process" and the simplification of the process for correcting obvious errors, defects or irregularities in enterprise agreements. It would also be consistent with one of the objects of Part 2-4 of the Act, namely the provision of "a simple, flexible and fair framework that enables collective bargaining in good faith" (section 171(a)).
[20] In considering these matters, it is relevant that at the time the Agreement was made its delegates' rights term was consistent with that in the Award. The Concerns are not the result of any default or neglect by the parties.
[21] From a reading of clause 40, it is apparent that the parties intended to adopt the terms of clause 29A of the Award, subject to the more favourable entitlement to which I have referred. I canvassed with the parties whether the Commission could exercise its powers under section 218A, on its own initiative, to address the Concerns. I outlined that the effect of the changes would be to amend clause 40 in a manner consistent with the variations that the Full Bench made to the Award term. On 28 January 2026, the United Workers Union (UWU), which was a bargaining representative for the Agreement, informed me that it agreed to me taking that approach. Metcash confirmed its agreement the following day.
[22] Consistent with the approach that I suggested to the parties, several variations are required. To remove the purported limitation on representation to "eligible Employees", that term should be replaced with "eligible workers". To make sense of that change, the definition of "eligible worker" introduced by the Full Bench decision should be included in the Agreement. The irregularity in clause 40.2(1) can be resolved by replacing the words "for the purpose of representing" with "in relation to", and by replacing the reference to "clause 39(1)" with "clause 40.1". The irregularities in clauses 40.5(1) can be resolved by replacing that clause with clauses 29A.9(a) and (b) of the Award as they now appear.
[23] In reviewing clause 40, I observed two other obvious typographical errors. First, clause 40.3(2) refers to "clause 1.3(1)", which is clearly meant to be a reference to clause 40.3(1) (there is no clause 1.3(1) in the Agreement). Second, although the Agreement contains a clause 40.4(3), it has no clauses 40.4(1) and (2). For consistency with the formatting in the Agreement generally, the clause should be re-numbered as 40.4(1).
[24] Pursuant to section 218A(1), I order that the Agreement be varied as follows:
(1) Delete the words in clause 40(1)b. and replace them with the following:
eligible workers means members and persons eligible to be members of the workplace delegate's organisation who work in a particular enterprise.
(2) Delete the term "eligible Employees" wherever it appears in clause 40 and replace it with "eligible workers".
(3) Delete the first sentence of clause 40.2(1) and replace it with the following:
A workplace delegate may communicate with eligible workers in relation to their industrial interests under clause 40.1.
(4) In clause 40.3(2), delete the reference to "clause 1.3(f)" and replace it with "clause 40.3(f)".
(5) Re-number clause 40.4(3) as 40.4(1).
(6) Delete clause 40.5(1) and replace it with the following:
(1) A workplace delegate's entitlements under this clause are subject to the conditions that the workplace delegate must, when exercising those entitlements:
a. comply with the reasonable policies and procedures of the employer, including reasonable codes of conduct and requirements in relation to occupational health and safety and acceptable use of ICT resources;
b. not hinder, obstruct or prevent eligible workers exercising their rights to freedom of association.
(2) When exercising any entitlements under this clause, a workplace delegate must, other than in the reasonable exercise of those entitlements:
a. comply with their duties and obligations as an employee; and
b. not hinder, obstruct or prevent the normal performance of work.
(7) Re-number existing clauses 40.5(2) and (3) as 40.5(3) and (4) respectively.
[25] Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to the application have been met.
[26] The UWU supports the approval of the Agreement. It has given notice under section 183 of the Act that it wants the Agreement to cover it. As required by section 201(2) of the Act, I note that the Agreement covers the UWU.
[27] The Agreement is approved. In accordance with section 54 of the Act, the Agreement will operate from 10 February 2026. The nominal expiry date of the Agreement is 30 June 2028.
[1] In this decision, all references to legislative provisions are references to provisions of the Act
[7] The date by which a majority of the employees to be covered by the Agreement voted to approve it: section 182(1).
[9] This can be seen when comparing the Agreement with clause 29A.6 of the Award, which references clause 29A.5
[11] 12 2025] FCAFC 187 at [111]
[14] Application by Aurizon Operations Limited [2023] FWCFB 193 at [76]
[15] Notwithstanding the words in parenthesis in paragraph 775 of the Explanatory Memorandum, which suggest that any variation would occur after the enterprise agreement had been approved (why else would a Full Bench appeal be required?)
[16] There are numerous instances of the Commission doing so. Recent examples include Application by Sydney Harbour Stevedores Pty Ltd [2025] FWCA 4448 and Application by Construction, Forestry and Maritime Employees Union [2025] FWCA 4073
Printed by authority of the Commonwealth Government Printer