Can You Change an EBA After It’s Approved? Yes. But Heidelberg Materials Just Showed Why You Shouldn’t Have To

Thirty-six minutes.

That’s what Heidelberg Materials went back to the Fair Work Commission to change in its South Australian plant supervisors’ enterprise agreement. Six months after the agreement was approved, the company ran a variation process to drop the meal allowance trigger from 10.6 hours to 10 hours. The allowance itself stayed exactly the same at $19.80.

Same Commissioner. Same agreement. A second application, a second sign-off and a second decision.

So yes, you can vary an EBA once it’s ratified and approved. The real question is whether you should, and how to avoid needing to.

The short answer Can you vary an approved EBA? Yes. Under the Fair Work Act, the employer and employees can agree to change it at any time, as long as employees vote for it and the Fair Work Commission approves it. Is it easy? No. It follows most of the same steps as making the agreement in the first place, including a vote and the better off overall test. Is it worth it? Sometimes. But for most changes there’s a cheaper option, and the best option is getting the agreement right first time.

What Did Heidelberg Materials Actually Change?

The Heidelberg Materials Australia Pty Ltd SA Plant Supervisors’ Agreement 2025 was approved by Commissioner Rogers on 16 March 2026 in [2026] FWCA 578. It started operating on 23 March 2026 and runs to 1 October 2029.

It didn’t sail through. The company had to give four written undertakings before it could be approved, covering part-time hours, casual minimum engagement and loading, Saturday ordinary hours and a four-hour minimum for Sunday work. The Commissioner also flagged two clauses that appeared to clash with the National Employment Standards: one letting the employer withhold NES money if an employee didn’t give enough notice, and a public holidays clause that didn’t pick up all state-declared days.

Then in August 2026, the company and the employee representative signed off on a variation. It was approved on 21 September 2026 in [2026] FWCA 2597 and took effect the same day.

The decision says the application sought to vary “various clauses”. The variation document attached to it shows one.

	Before	After
Clause 13.3 Meal allowance trigger	Working beyond 10.6 hours in a day	Working beyond 10.0 hours in a day
Meal allowance amount	$19.80 per occasion	$19.80 per occasion
Everything else	Unchanged	Unchanged

 

That’s it. A full formal process to lower a trigger by 36 minutes.

Why Would a Business Go Through All That for 36 Minutes?

We don’t know the internal reasons, and we’re not going to guess at them. But reading the agreement itself, there’s a likely clue.

Clause 8.1 says supervisors work 7.6 ordinary hours a day. The original meal allowance clause was triggered by working beyond 10.6 ordinary hours. On a literal read, that trigger could never be met, because nobody works 10.6 ordinary hours when ordinary hours are 7.6.

That kind of drafting problem is exactly what causes disputes, underpayment claims and awkward conversations with staff about what the agreement “really meant”.

Here’s the interesting part. The consolidated version approved in September still says “10.0 ordinary hours”. The variation document itself just says “10.0 hours”. So the same wording question arguably survives the fix.

This isn’t a dig at Heidelberg. Plenty of agreements we review have the same issues. It’s a lesson in why every word in an EBA matters, because changing even one of them later is a project.

What Is the Process to Vary an Enterprise Agreement?

Varying an approved EBA is covered by sections 207 to 216 of the Fair Work Act. In plain English, it looks like this:

1. Agree what you want to change. Draft the exact wording of the variation. Not a summary, the actual clause.
2. Give employees the variation and explain it. Employees covered by the agreement need a copy of the proposed variation and anything it refers to, plus notice of when, where and how the vote will happen. This happens during a 7-day access period before the vote.
3. Explain the effect properly. You must take all reasonable steps to explain what the change means and how it affects them, in a way that suits your workforce. Young workers, staff from non-English-speaking backgrounds and people without a union rep all count here.
4. Run the vote. The variation is made when a majority of employees who cast a valid vote approve it.
5. Apply to the Fair Work Commission. The application generally needs to be lodged within 14 days of the vote, with a statutory declaration about how you ran the process.
6. Pass the approval tests again. The Commission checks the variation was genuinely agreed and that the agreement as varied still passes the better off overall test against the award. It can ask for undertakings if something isn’t right.
7. Wait for the decision. The variation only operates from the date the Commission says it does. Not from the date of the vote, and not from when you’d like it to.

In the Heidelberg case, the employer signed on 10 August, the employee representative on 17 August and approval landed on 21 September. That’s around six weeks from signatures to approval, on top of whatever consultation and voting happened beforehand. For a single, employee-friendly change.

Is Varying an EBA Worth It?

Sometimes. Here’s the honest commercial picture.

When it can be worth it

• You’ve found a drafting error that creates real underpayment or dispute risk.
• Your operations have genuinely changed, such as new rosters, new sites or new roles, and the agreement no longer fits.
• You want to lock in a change so it can’t be argued about later.
• You’re fixing several problems at once, so the effort is spread across real value.

When it usually isn’t

• You just want to be more generous. An EBA sets the minimum. You can pay above it without asking anyone’s permission.
• The issue only affects one or two people. An individual flexibility arrangement may do the job.
• The agreement is close to its nominal expiry date. Fix it properly in the replacement agreement.
• You’re trying to cut conditions. The agreement as varied still has to leave employees better off overall than the award, and staff still have to vote yes.

Lowering a meal allowance trigger is a benefit to employees. Heidelberg could arguably have just paid the allowance from 10 hours as a company practice. The trade-off is that an informal practice is less certain than a properly approved term. Whether that certainty was worth a full variation process is the kind of call every business needs to make with eyes open.

What Did the Variation Not Fix?

This is the bit that should make every business owner with an EBA sit up.

The variation changed one clause. Reading the consolidated agreement as varied, a range of other issues appear to still be there, including:

• Clause 14.2, letting the employer withhold money owed under the NES if an employee doesn’t give enough notice. The Commissioner flagged this as possibly inconsistent with the NES back in March.
• Clause 22.1 on public holidays, also flagged as not covering all state-declared days.
• References to the Workplace Relations Act and the Trade Practices Act, both long since replaced.
• Two clauses numbered 24, and a table of contents with page numbers that don’t match.
• A pay table column headed “Current then delete data”, and a CPI footnote with no CPI-linked increase anywhere in the schedule.

None of these are the end of the world on their own. The NES generally wins where an agreement is less generous, and the agreement says so itself. But if you’re going to the trouble of a vote and a Commission application, clean the whole thing up while you’re there. Running the process twice is the expensive option.

What Are the Alternatives to Varying an EBA?

Before you start a formal variation, check whether one of these does the job:

• Pay above the agreement. If the change only benefits staff, you usually don’t need a variation. Put it in writing so everyone knows where they stand.
• Individual flexibility arrangements (IFAs). Most agreements have a flexibility term. It lets you vary how certain terms apply to one employee, as long as they’re better off overall. Either party can end it, usually on 28 days’ written notice.
• Fix ambiguity through the Commission. Under section 217, the employer, an employee or a union covered by the agreement can ask the Commission to vary it to remove ambiguity or uncertainty. No employee vote is needed, but you need a genuine ambiguity, not a change of heart.
• Wait for the replacement agreement. If your nominal expiry date is close, park the issue and deal with it in bargaining.
• Terminate and replace. Possible, but it’s a bigger and riskier process than a variation. Get advice before you go near it.

How Do You Get Your EBA Right the First Time?

Every hour spent on the draft saves days later. Before your agreement goes to a vote:

1. Read it against itself. Do the hours clauses, overtime triggers and allowance triggers actually work together? This is exactly where Heidelberg’s meal allowance came unstuck.
2. Check every clause against the NES. Notice, deductions, public holidays and leave are the usual trouble spots.
3. Run the BOOT on real rosters. Test it against actual and reasonably foreseeable patterns of work, including part-timers and casuals, not just a standard full-time week.
4. Strip out the template leftovers. Old legislation names, drafting notes, duplicate numbering and placeholder text all signal a rushed job to the Commission.
5. Cover everyone the agreement says it covers. If it covers part-time and casual staff, it needs proper terms for them. Heidelberg needed undertakings on both.
6. Get an independent review before the vote. Fresh eyes catch what the bargaining team stopped seeing months ago.

Already have an EBA? Here’s what to do Do now: Check whether any clause is being applied differently to how it’s written. That’s your underpayment risk, and it won’t wait for the next agreement. Do now: Check whether the Commission flagged NES issues when your agreement was approved, and make sure payroll applies the NES where it wins. Do later: Keep a running list of wording issues and operational changes. Fix them in one variation, or save them for the replacement agreement.

Do Small Businesses Need to Worry About This?

Most small businesses are on modern awards, not enterprise agreements. If that’s you, this is still a useful warning. An EBA is a legal instrument, not a policy you can tweak when it suits.

If you’re weighing up an EBA to get more flexibility than the award gives you, go in knowing that what you sign is what you’re stuck with until it’s replaced, unless you’re prepared to repeat a large chunk of the process.

Frequently Asked Questions

Can you vary an enterprise agreement after it has been approved?

Yes. The employer and the employees covered can agree to vary it at any time while it’s operating. Employees must vote to approve the variation and the Fair Work Commission must approve it before it takes effect.

Do employees have to vote on a variation to an EBA?

Yes. A majority of employees who cast a valid vote must approve it. The only main exception is a Commission variation under section 217 to remove ambiguity or uncertainty.

Does a varied EBA have to pass the better off overall test again?

Yes. The Commission assesses the agreement as varied. If the change leaves employees worse off overall compared to the award, it won’t be approved without fixes or undertakings.

How long does it take to vary an enterprise agreement?

It depends on the change and your workforce. You need at least a 7-day access period before the vote, then the Commission’s approval time. In the Heidelberg Materials case it took about six weeks from signatures to approval.

When does a variation to an EBA start?

From the date the Fair Work Commission specifies in its decision. In the Heidelberg Materials case, it operated from the day of approval.

Can I just pay my staff more than the EBA without varying it?

Usually, yes. An enterprise agreement sets minimum entitlements. Paying above them doesn’t need a variation, but put the arrangement in writing so it’s clear what you’ve committed to.

Need Your EBA Checked Before It Costs You?

Whether you’re drafting a new agreement or living with one that doesn’t quite work, HR Gurus will cut through the BS and tell you what needs fixing, what can wait and what’s worth the effort.

Book a call with HR Gurus today.

This article is general information only and is not legal advice. It is based on the published Fair Work Commission decisions and agreement documents as at October 2026.