Application for approval of the Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2026-2030

[1] An application has been made by Tomlinson Energy Service Pty Ltd for approval of an enterprise agreement (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement at clause 1.1 provides "Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2022-2026" as its title, however, its first page and clause 2.1 display the name "Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2026-2030".

[3] Under s 218A(2)(a), the Commission may, on its own initiative, exercise its power under s 218A(1) to "vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form)".

[4] I am satisfied the current title containing "2022-2026" is an obvious error and accordingly amend clause 1.1 to read "Tomlinson Energy Service Pty Ltd (South Australia) Enterprise Agreement 2026-2030". The variation pursuant to s 218A will operate from 20 March 2026.

[5] Section 205A(2) has the effect that if an Agreement contains a delegates' rights term that is inferior to the delegates' rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is "taken to be a term of the Agreement" under s 205A(2)(b). The inferior delegates' rights term in the Agreement is rendered a nullity and of "no effect" under s 205A(2)(a).

[6] Clause 40 of the Agreement provides for a delegates' rights term that is less favourable than the workplace delegates' rights term in the Awards. Pursuant to s 205A(2) of the Act, clause 40A of the Manufacturing and Associated Industrials and Occupations Award 2020 is taken to be a term of the Agreement.

[7] The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

[8] I note that the following provisions are likely to be inconsistent with the National Employment Standards:

• Clause 28.9 - Termination

• Clause 31.5 - Public holidays

[9] However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement.

[10] Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

[11] The Australian Workers' Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

[12] The Agreement is approved today 13 March 2026. It will operate from 20 March 2026 as required by section 54 of the Act. The nominal expiry date is 3 February 2030.

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