Application for approval of the SAF-HOLLAND (AUST.) Pty Ltd Enterprise Agreement 2026

[1] An application has been made for approval of an enterprise agreement known as the SAF-HOLLAND (AUST.) 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 Saf-Holland (Aust.) Pty. Ltd. The Agreement is a single enterprise agreement.

[2] Upon an initial review of the application and the materials lodged with it, I had some concerns as to whether the notification date identified for the Agreement was accurate and whether there were defects with the Notice of Employee Representational Rights (NERR) provided to employees. It was quickly identified through correspondence between the Applicant and my chambers that the notification time identified on the employer's F17B was indeed incorrect, apparently based on a misunderstanding. The clarification of that matter satisfied me that the NERR was provided to employees within the time required by section 173(3) of the Act.

[3] The defects identified in the NERR were that it contained additional information in the form of an employer letterhead and a subject heading and that it failed to identify the name of the employer, the name of the proposed agreement and the proposed coverage. Further material provided to my chambers upon raising this concern was sufficient to satisfy me, for the purposes of section 188(5) of the Act, that these were minor procedural errors that were not likely to have disadvantaged the employees. In particular, it became apparent that the scope of the proposed agreement (as it then was) was identical to that of the agreement it was replacing, and employees proposed to be covered had already notified the employer of their bargaining representatives for the purposes of the proposed agreement with that scope prior to the NERR being circulated. In other words, the NERR had essentially become redundant at the point the notification time was reached.

[4] Having regard to the materials provided with the application for approval and since, 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.

[5] 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 16 February 2029.

[6] 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. 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. The parties were assisted by having the benefit of decision the Full Bench which varied the Manufacturing and Associated Industries and Occupations Award 2020 in response to decision of the Court.

[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 2.4 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 2.4 is attached below at Annexure A.

[9] I am satisfied that the amendments to clause 2.4 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 2.4 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

[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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