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[33]
austlii:cth/FWCA/2026/199
General information, not legal advice.
FWCA
2026-02-02
Original judgment source is linked above.
s.185 - Application for approval of a single-enterprise agreement
O'BRIEN® DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2025 - 2028
Application for approval of the O'Brien® Distribution Centre Enterprise Agreement 2025 - 2028
[1] O'Brien Glass Industries Limited has applied for approval of a single enterprise agreement known as the O'Brien® Distribution Centre Enterprise Agreement 2025-2028 (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 the course of action that the Full Bench proposed.
[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 16 December 2025.[7] Clause 39 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 39 of the Agreement appears not to meet the requirements of section 350C in the following respects (Concerns):
(1) Clause 39.1 purports to limit a workplace delegate's right of representation to "eligible employees" (which term is not defined). 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 39.2 provides that a workplace delegate "may communicate with eligible employees for the purpose of representing their industrial interests" (my emphasis). Leaving aside the reference to eligible employees, 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 used in clause 39.2.[9]
(3) Clause 39.5(a)(i) provides that when exercising their rights under the clause, a workplace delegate "must comply with their duties and obligations as an employee". Clause 39.5(a)(iii) 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".[10]
[10] 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.
[11] 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".[12]
[12] 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 parties could not have known that the Full Court decision would be handed down the next day, much less what the Full Court would decide. 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.
[13] 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)
[14] 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 cast 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.[13] 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.[14]
[15] 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)).
[16] 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.
[17] I am mindful that 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. However, in some respects clause 39 of the Agreement is more favourable for workplace delegates than clause 29A of the Award, namely:
(1) the Agreement does not require a workplace delegate to provide O'Brien Glass with "written notice of their appointment or election as a workplace delegate" before exercising their entitlements under the clause (cf. clause 29A.3);
(2) the combined operation of clauses 39.4 and 38 of the Agreement is that workplace delegates are entitled to a maximum of five days paid Union Education Leave 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);
(3) the Agreement requires less notice of the training (four weeks as opposed to five);
(4) the Agreement does not permit O'Brien Glass to request that the workplace delegate provide an outline of the training content (cf. clause 29A.8(e)); and
(5) the Agreement does not require the workplace delegate to provide O'Brien Glass with evidence that would satisfy a reasonable person of their attendance at the training (cf. clause 29A.8(g)).
[18] These more favourable terms provide further support for the use of section 218A to address the Concerns.
[19] From a reading of clause 39, it is apparent that the parties intended to adopt the terms of clause 29A of the Award, subject to the more favourable drafting 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.
[20] On 28 January 2026, O'Brien Glass informed me that it was "in agreeance to [me] varying clause 39 of the Agreement under section 218A". The same day, the Construction, Forestry and Maritime Employees Union (CFMEU), which was a bargaining representative for the Agreement, informed me that it "agrees that, pursuant to section 218A of the Fair Work Act 2009, the Commission may vary the Agreement to remedy obvious errors, defects or irregularities, and that the concerns raised ... in relation to clause 39 of the Agreement are of the kind contemplated by that provision".
[21] 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 39.2 can be resolved by replacing the words "for the purpose of representing" with "in relation to". The irregularities in clauses 39.5(a) can be resolved by replacing that clause with clauses 29A.9(a) and (b) of the Award as they now appear.
[22] Pursuant to section 218A(1), I order that the Agreement be varied as follows:
(1) Before clause 39.1 insert the following clause:
In this clause, 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 39 and replace it with "eligible workers".
(3) Delete the words "for the purpose of representing" in clause 39.2(a) and replace them with "in relation to".
(4) Delete clause 39.5(a) and replace it with the following:
(a) A workplace delegate's entitlements under this clause are subject to the conditions that the workplace delegate must, when exercising those entitlements:
(i) 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;
(ii) not hinder, obstruct or prevent eligible workers exercising their rights to freedom of association.
(b) When exercising any entitlements under this clause, a workplace delegate must, other than in the reasonable exercise of those entitlements:
(i) comply with their duties and obligations as an employee; and
(ii) not hinder, obstruct or prevent the normal performance of work.
(5) Re-number existing clauses 39.5(b) and (c) as 39.5(c) and (d) respectively.
Other matters arising in relation to the approval of the Agreement
[23] The notice of employee representational rights that was provided to employees contained an apparent error, in that it named the agreement that was to be the subject of the bargaining as the "O'Brien Distribution Centre Enterprise Agreement 2022-2025". I consider this to be a minor procedural or technical error of the nature contemplated by section 188(5). I am satisfied that the relevant employees are not likely to have been disadvantaged by the error. As a result, I will disregard it.
[24] The Employer has provided a written undertaking, a copy of which is attached in Annexure A to this decision. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement. The Commission sought the views of the CFMEU in respect of the undertaking. Pursuant to section 190(3), I accept the undertaking. It is taken to be a term of the Agreement.
[25] Clause 32 of the Agreement (Compassionate Leave) does not contemplate compassionate leave being available to an employee after the stillbirth of a child of the employee or of a member of the employee's immediate family or household (section 104(1)(b)) or after the employee or the employee's spouse or de facto partner has a miscarriage (section 104(1)(c)). However, clause 4 of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards, and the NES provide a greater benefit to employees, the NES will prevail to the extent of the inconsistency. On this basis, I am satisfied that the shortcoming in clause 32 does not prevent the approval of the Agreement.
[26] Having regard to the undertaking and the material in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to the application have been met.
[27] The CFMEU 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 CFMEU.
[28] The Agreement is approved. In accordance with section 54 of the Act, the Agreement will operate from 9 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).
[10] 11 2025] FCAFC 187 at [111]
[12] Application by Aurizon Operations Limited [2023] FWCFB 193 at [76]
[13] 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?)
[14] 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
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