Third Zeton Pty Ltd Trading AS Tieman Tankers [2025] FWCA 2618 | Case summary

[1] An application has been made for approval of a single enterprise agreement known as the Third Zeton Pty Ltd Trading as Tieman Tankers / AMWU Victorian Collective Workplace Agreement 2025 (the Agreement). The application was made pursuant s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Third Zeton Pty Ltd (employer).

[2] The Australian Manufacturing Workers Union (AMWU), being a bargaining representative for the agreement, has given notice under s.183 that it wants the Agreement to cover the AMWU. In accordance with s.201(2) I therefore note that the Agreement covers the AMWU. By way of declaration in Form F18, the AMWU has supported the approval of the Agreement and expresses the view that the Agreement passes the better off overall test.

[3] Prior to approving the agreement, it was necessary to make some further enquiries of the parties relating to following matters:

(a) The notification time stated in the employer's declaration (F17B) was 3 April 2025, however the F17B also stated that employees were not provided with a Notice of Employee Representational Rights (NERR) until 2 May 2025. Submissions were sought as to how this may be reconciled with the requirements set out in section 173(3) of the Act and paragraph 2 of the Statement of Principles of Genuine Agreement, together with any submission that might be advanced under section 188(5) in respect of this circumstance;

(b) Clause 5 of the Agreement states that it "shall operate from 1 July 2025". This misstates the legal effect of section 54(1) of the Act. Whilst an error of this nature is no impediment to the approval of the Agreement, the bargaining representatives' views were sought on whether the error was of nature amenable to the power to vary in section 218A;

(c) The consultation clause at clause 28 of the Agreement does not provide for consultation about a change to an employee's regular roster or ordinary hours of work. This being a requirement of sections 205(1)(a)(ii) and 205(1A) of the Act, the bargaining representatives' views were sought as to whether they had any contrary view to the proposition that pursuant to section 205(2) the model consultation term would be taken to be a term of the Agreement;

(d) The underlying Award (the Manufacturing and Associated Industries and Occupations Award 2020) contains (at clause 34.2) a definition of shiftworker for the purposes of the NES. The Agreement does not appear to contain any such definition. The bargaining representatives' views were sought as to whether an undertaking was intended to be offered to address compliance with sections 187(4), 196 and 87(1)(b) of the Act.

(e) The Agreement contains an NES precedence clause at clause 8.5. The bargaining representatives views were sought as to whether this is sufficient to deal with the apparent shortfalls in in the compassionate leave clause in clause 12 of the Agreement as compared to the compassionate leave as provided as part of the NES in sections 104-106 of the Act, or whether an undertaking is intended to be provided to meet the requirements of section 186(2)(c) of the Act.

[4] The following became apparent in subsequent correspondence with chambers and in a conference on 30 July 2025 to discuss these matters:

(a) The date identified as the notification time was the date that the employer met with employees on site to notify them of an intention to bargain. On that occasion, the employees were informed that they had a right to be represented by a representative of their choice but in the first instance the company was seeking a meeting with the AMWU to progress the bargaining. The employer states that it wanted the AMWU to check its NERR before distributing it, and that this did not occur until the meeting with the AMWU on 2 May 2025. A copy of the Agreement and explanatory material was not provided until four weeks later, so there was clearly ample opportunity for the right of representation in bargaining (that had been advised of in the meeting and in the belated notice) to be exercised in the intervening period. In these circumstances, I am satisfied that the employees were not disadvantaged by the minor procedural error constituted by the delay in delivering the NERR.

(b) The explanation provided to employees by the employer in meetings with employees on 30 May and by the union in separate later meetings made clear that the significance of the 1 July 2025 date was that wage increases stipulated to commence on that date would be backpaid to that date. The bargaining representatives were in agreement that it was open to me and appropriate in the circumstances to correct the error in the expression in clause 5 of the Agreement and I address this matter below.

(c) The bargaining representatives accept that the consultation clause at clause 28 does not meet the description of a consultation term as required by 205(1)(a)(ii) and 205(1A). They urged me to exercise my powers under section 218A to address this aspect, noting the decision in Gippsland NDT Services[1] wherein the power to vary on account of ambiguity or uncertainty was exercised to vary a consultation term and thus prevent the model term from being taken to be a term of the agreement under consideration.

(d) I am satisfied based on the submissions of the bargaining representatives that there are no employees covered by the agreement who meet the definition of shiftworker provided in the Award, thus the potential issue under sections 187(4), 196 and 87(1)(b) does not arise.

(e) The bargaining representatives understand the NES rights to compassionate leave as amended in 2021 now extend to miscarriages and accept that the NES precedence clause is effective to ensure those rights are available to employees. No undertaking is required.

[5] It was additionally identified in the conference on 30 July 2025 that there had been a typographical error in clause 26.2 in that it cross referenced Attachment 2 (which deals with wages) rather than Attachment 3 (which deals with overtime). Further, an allowance known as the "tanker repair allowance" is incorrectly referred to as $115.93 per day at clause 21.2 of the Agreement, whereas the relevant schedule of allowances at Appendix 2 that this allowance commences at the rate of $15.93 per day and is indexed on 1 July of 2026, 2027 and 2028. These are also obvious errors capable of addressing through an amendment under s. 218A.

[6] Having taken into account the materials provided with the application for approval and since, as well as the matters discussed at the conference on 30 July 2025, I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 as relevant to this application for approval have been met. However, pursuant to section 205(2), the model consultation term is taken to be a term of the Agreement.

[7] Whilst I understand it would be more convenient to the parties to vary clause 28 of the agreement to prevent the circumstance of the model term being taken to apply, I do not consider that section 218A is an appropriate avenue for achieving this. Having regard to the evident purpose of section 218A as discussed in Buller Ski Lifts[2], there is plainly a difference between an "obvious error, defect or irregularity" of the type apprehended by that section and circumstance which the Act separately anticipates and provides a specific response for. The fact that the model consultation term is taken to apply does nothing to diminish the force of clause 28 of the Agreement as presently expressed - section 205(2) adds to the agreement rather substituting one obligation for another (except in the case of an objectionable emergency management term wherein the substitution would be a consequence of an undertaking rather than section 205(2) in any event). There was no argument that the additive effect of incorporating the model consultation term gave rise to an ambiguity or uncertainty, indeed the significant feature of clause 28 that the AMWU sought to retain was the early involvement of the union in the consultative process, commencing with the employer's duty to notify it of definite decisions to introduce major changes having significant effects, as well as the affected employees. Simultaneous obedience of the two obligations to notify change is possible and it is not prima facie evident that the dual obligations identified in this case give rise to an ambiguity or uncertainty, however the parties are obviously able to exercise their rights to seek a variation in due course on those grounds should there be a need for it. It was not addressed in submissions and I express no firm view on the matter.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 August 2025. The nominal expiry date of the agreement is 30 June 2029.

[9] As noted above, I have decided to vary the Agreement pursuant to section 218A. There is no doubt that there is a capacity to vary the agreement prior to its approval and in conjunction with the approval decision.[3] The variations that I order are as follows:

(a) Clause 5 of the Agreement will be varied to read:

[3] BHP Coal Ltd [2023] FWCA 115, Buller Ski Lifts Pty Ltd [2023] FWCA 844, Gippsland NDT Services [2024] FWCA 3838.

Third Zeton Pty Ltd Trading AS Tieman Tankers [2025] FWCA 2618 (6 August 2025)

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Judgment (13 paragraphs)

Third Zeton Pty Ltd Trading AS Tieman Tankers [2025] FWCA 2618 (6 August 2025)

Legislation Cited (1)