Thiess Pty Ltd [2026] FWCA 830 (31 March 2026)

[1] This decision deals with an application made for approval of an enterprise agreement known as the Thiess Curragh Mine Enterprise Agreement 2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Thiess Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. The difference in the name was the addition of the year, reflective of the time taken in the Agreement making process, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

[3] The Agreement does not contain a delegate's rights term that is no less favourable than the modern award, pursuant to s.205A, and on that basis the term in the relevant modern award will apply and the delegates' rights term in the Agreement at clause 39 will have no effect.

[4] The Applicant has provided written undertakings. 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.

[5] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the undertakings.

[6] Pursuant to s.190(3) of the Act, I accept the undertakings.

[7] Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss.186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

[8] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 30.2 - Public Holiday substitution

• Clause 32.6 - Personal Leave

However, noting clause 2.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU), Mining and Energy Union (MEU) and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) have each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the ETU, MEU and AMWU.

[10] The Agreement is approved and will operate in accordance with s.54 of the Act commencing from 7 April 2026. The nominal expiry date of the Agreement is 30 March 2028.

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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