Lindsay Brothers Management Pty Ltd Trading AS Lindsay Transport

[2025] FWCA 2390

[2025] FWCA 2390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lindsay Brothers Management Pty Ltd Trading AS Lindsay Transport

(AG2025/2009)

LINDSAY TRANSPORT ENTERPRISE AGREEMENT 2025

Road transport industry
COMMISSIONER HUNT	BRISBANE, 21 JULY 2025

Application for approval of the Lindsay Transport Enterprise Agreement 2025

1. Lindsay Brothers Management Pty Ltd T/A Lindsay Transport (the Employer) has applied for approval of an enterprise agreement known as the Lindsay Transport Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 12 July 2024 and the Agreement was made on 16 June 2025. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Transport Workers’ Union of Australia (TWU) and employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The TWU indicated that it had no objections to the Employer’s undertakings.

1. 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The TWU, being a bargaining representative for the Agreement, has given notice under s.183 it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the TWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2025. The nominal expiry date of the Agreement is 21 July 2029.

Section 218A variation

1. In correspondence issued to the parties, I advised the parties that the Agreement appeared to contain a clause referencing error in clause 3.6 of Schedule 1, which states, “…A part-time LH Employee must be paid an additional 15% on the cents per kilometre rates set out in clause Error! Reference source not found…”. I expressed my view to the parties that this was an obvious error, defect or irregularity within the meaning of s.218A of the Act. I sought the views of the parties as to whether the Commission should vary the Agreement to correct the error under s.218A.

1. The Employer submitted that the Commission should exercise its discretion to vary the Agreement to correct the error by replacing the words “clause Error! Reference source not found” with “clause 5.3 of Schedule 1”.

1. I am satisfied that clause 3.6 of Schedule 1 contains an obvious typographical error within the meaning of s.218A(1) of the Act. The variation sought by the Employer would amend clause 3.6 of Schedule 1 of the Agreement, such that it would read, “…A part-time LH Employee must be paid an additional 15% on the cents per kilometre rates set out in clause 5.3 of Schedule 1…”. It is obvious that the intention of clause 3.6 of Schedule 1 was to refer to the clause containing the kilometre rates, which are clearly expressed in clause 5.3 of Schedule 1 of the Agreement.

1. 
   Accordingly, I exercise my discretion to vary the Agreement under s.218A of the Act to correct the obvious typographical error in clause 3.6 of Schedule 1. The variation sought will operate from the operative date of the Agreement, being 28 July 2025. The version of the Agreement published with this decision contains the original, erroneous clause; however, the clause is to be raid in accordance with the variation set out in this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A – Undertakings