Application for approval of the Penrite Oil Co. Pty. Ltd. Enterprise Agreement 2026

[1] An application has been made for approval of an enterprise agreement known as the Penrite Oil Co. Pty. Ltd. Enterprise 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 Penrite Oil Co. Pty. Ltd. and the Agreement is a single enterprise agreement.

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

[3] The Australian Manufacturing Workers Union (AMWU) 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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 2026. The nominal expiry date of the Agreement is 31 December 2029.

[5] The Agreement was one of many that had been made 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. Clause 46 of the Agreement, which deals with workplace delegates rights, is less favourable than the terms of the Workplace Delegates provision at clause 29A of the Oil Refining and Manufacturing Award 2020, having regard to the variations made to that Award by the Full Bench in response to decision of the Full Court just referred to. Accordingly, and subject to what follows, that Award term is taken to be a term of the Agreement pursuant to section 205A of the Act and clause 46 of the Agreement is of no effect.

[6] In corresponding with the bargaining representatives for the Agreement, it became apparent that consequence of clause 46 of the Agreement having no effect introduced uncertainties into the Agreement, because that clause is cross referenced elsewhere in the Agreement. It appeared that this uncertainty could be remedied by replacing the text of the otherwise inoperative clause 46 with the words "Clause 29A of the Oil Refining and Manufacturing Award 2020 [MA000072] applies" and by including a copy of that Award clause as an Appendix to the Agreement. The bargaining representatives were in agreeance with this view and the Applicant consented to be a moving party for the purposes of an application to vary under section 217 of the Act.

[7] Separately to this, the Applicant identified a cross-referencing error clause in clause 43.1.7 of the Agreement. It refers back to clause 47.1.6 whereas it should refer back to clause 43.1.5. Having considered the context, I am satisfied that this is an obvious error that is amendable to addressing by way of variation under section 218A of the Act and that it is appropriate to do so.

[8] I have dispensed with the formal requirements for a written application to vary pursuant to Rule 7 of the Fair Work Commission Rules 2024, and I make the variations sought, being:

1. A variation pursuant to section 217 of the Act to replace the text of the previous clause 46 - Workplace Delegates' Rights with "Clause 29A of the Oil Refining and Manufacturing Award 2020 [MA000072] applies" and to add an Appendix to the Agreement reproducing that Award clause.

2. A variation pursuant to section 218A of the Act to replace the cross reference in clause 43.1.7 of the Agreement so that it refers to clause 43.1.5, rather than 43.1.6.

[9] The above variations are made in accordance with a corrected copy of the Agreement, filed by the Employer on 11 February 2026. The Agreement attached to this Decision is the Agreement as varied and will operate from 23 February 2026.

[1] [2025] FCAFC 187

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