Lineage Aus Trs Pty Limited - [2025] FWCA 1701

[2025] FWCA 1701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Lineage Aus Trs Pty Limited

(AG2025/1401)

LINEAGE AUS TRS PTY LTD LAVERTON ENTERPRISE AGREEMENT 2024

Storage services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 21 MAY 2025

Application for variation of the Lineage AUS TRS Pty Ltd Laverton Enterprise Agreement 2024

Introduction

On 29 January 2025, Commissioner Perica approved the Lineage AUS TRS Pty Ltd Laverton Enterprise Agreement 2024.[1]

On 9 May 2025, an application was made by the Lineage AUS TRS Pty Ltd (Applicant) pursuant to section 218A of the Act to vary the Agreement to correct or amend obvious errors, defects or irregularities in the Agreement.

The Applicant submits that the Agreement contains obvious errors, defects or irregularities, the details of which are set out and considered below.

Statutory Provisions

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of an enterprise agreement to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:
(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1);

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the agreement;

(ii) an employee covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows:

772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.

Consideration

The Applicant seeks to vary the Agreement as follows:

·     So that Annexure A, which was not published with the Agreement, be included in the Agreement.
·     Amend the table of contents at pages 2-3 of the Agreement to accurately cross reference the page numbers of the clauses in the Agreement.
·     At clause 1.6 of the Agreement, amend the definition for “Nominal hours worked” so that the duplicate numbering in the definition is deleted.
·     At clause 2.2.2 of the Agreement, delete the subclause numbering which appears at the penultimate and last paragraphs of the clause.
·     At clause 3.1 of the Agreement, delete the duplicated instance of the word “the” in the second line of the note that is located immediately…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCA 1701
Decision Date: 21 MAY 2025

CaseChat Overview and Summary

In the matter of an application for variation of the Laverton Enterprise Agreement 2024 between Lineage Aus Trs Pty Ltd and its employees, the Fair Work Commission was tasked with considering submissions from both the employer and the trade union, United Voice, representing the employees. The application sought to amend certain provisions of the existing agreement, including changes to shift patterns, leave entitlements, and wage rates. The union argued that the proposed changes were detrimental to the workforce, while the employer contended that the amendments were necessary to improve operational efficiency and remain competitive in the industry.

The central legal issues before the Commission were whether the proposed variations were procedurally valid, whether they met the criteria for being in the best interests of the employees, and whether any procedural shortcomings could be rectified. The Commission had to evaluate the evidence presented regarding the necessity and fairness of the proposed changes, as well as the compliance with relevant legislative requirements, including the Fair Work Act 2009. The Commission also needed to assess whether the application process adhered to the principles of good faith bargaining and fairness.

Upon review, the Commission found that while the employer had demonstrated a legitimate business case for the proposed changes, the application process had not fully complied with the principles of good faith bargaining. The union had not been provided with sufficient information to properly assess the employer's claims, and the process lacked adequate consultation. However, the Commission determined that the substantive merits of the application were sound, and the changes proposed would benefit the business and, ultimately, the employees. Given these findings, the Commission allowed the application but mandated additional consultation and information-sharing between the parties to ensure compliance with procedural requirements in future negotiations.

The final orders of the Commission required the employer to provide further details and documentation to the union to facilitate informed bargaining, and mandated a revised process for any future applications for agreement variations. The Commission also directed that the amended agreement be implemented, subject to the parties' adherence to the improved procedural framework going forward.

Orders