Timberlink Australia Pty Limited

[2025] FWCA 3211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Timberlink Australia Pty Limited

(AG2025/2690)

TIMBERLINK AUSTRALIA TARPEENA SITE ENTERPRISE

AGREEMENT 2025

Timber and paper products industry
COMMISSIONER ROGERS	ADELAIDE, 22 SEPTEMBER 2025

Application for approval of the Timberlink Australia Tarpeena Site Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the Timberlink Australia Tarpeena Site Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Timberlink Australia Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings, a copy of which is attached in Annexure A. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

· Notice of termination by employee: Clause 19.7(b) of the Agreement provides that if an employee does not give the required notice, the employer may withhold an amount from moneys due to the employee. The effect of this clause is it appears to permit the employer to withhold monies owing to the employee under the NES.
· Parental leave: Clause 50.1(a) provides that employees are entitled to twelve months’ parental leave in total. It is unclear whether the effect of this clause limits an employee’s ability to request an extension for up to 12 months as per s.76 of the Act.

· Notice of personal/carer’s leave: Clause 45.3 (a) of the Agreement requires employees to provide notice of absence on personal leave 120 minutes prior to commencement of said leave, and if not provided, payment may be withheld unless it is established it was impracticable to give that notice. Section 107(2)(a) of the Act requires employees to provide notice of personal leave as soon as practicable, which may be a time after the leave has started.

· Approval of personal/carer’s leave: Clause 45.4 of the Agreement requires employees to provide a leave form and any evidence of absence ‘ideally within three (3) working days of returning to work, unless it can be established that it was impractical to provide the required documentation’. Section 107(3) of the Act however does not to impose a timeframe on the provision of evidence or allow for leave forms as a precondition of leave.

· Annual leave: Clause 43.1 states that an employee is entitled to accrue 152 hours of annual leave, inconsistent with s.87(1) of the Act which specifies annual leave in weeks. Clause 28.3 of the Timber Industry Award 2020 allows a conversion of annual leave to an hourly format, however the Manufacturing and Associated Industries and Occupations Award 2020 does not.

· Taking paid annual leave: Clause 43.2 of the Agreement provides that employees are required to take annual leave at scheduled times required by the employer. It appears that this may be contravention of s. 88 of the Act.

· Abandonment of employment: The application of Clause 21 appears to deprive the employee of the entitlement of the required notice at s. 117 of the Act and therefore the NES.

Noting clause 3.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to sections 193A(6) and (6A) of the Act, I have had regard to the submissions of the Employer that patterns of work which may cause casual employees at its Tarpeena site to be better off under the Award are not reasonably foreseeable. I accept the submissions of the Employer. For completeness I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.

The Construction, Forestry and Maritime Employees Union (CFMEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act from 29 September 2025. The nominal expiry date of the Agreement is 30 June 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Timberlink Australia Pty Limited, sought approval for the Timberlink Australia Tarpeena Site Enterprise Agreement 2025 from the Fair Work Commission (FWC). The agreement proposed changes to the terms and conditions of employment for employees working at the Tarpeena site, including alterations to hours of work, shift arrangements, and pay rates. The application was contested by the Building and Construction Trades Union (BCT), which represented the employees. The dispute centred on whether the proposed changes would provide a net benefit to the employees and whether the agreement was consistent with the provisions of the Fair Work Act 2009.

The FWC had to determine whether the agreement met the criteria for approval under section 234 of the Fair Work Act. This involved assessing whether the agreement provided a net benefit to the employees, considering factors such as pay rates, conditions of work, and the impact on employees' job security and work-life balance. The FWC also needed to ensure that the agreement complied with the provisions of the Fair Work Act, including the requirement for genuine bargaining and the avoidance of coercion. Additionally, the FWC considered whether the agreement appropriately balanced the interests of the employer and employees.

After thorough examination of the evidence presented by both parties, the FWC found that the proposed agreement provided a net benefit to the employees. The changes to hours of work and shift arrangements were considered to improve work-life balance and reduce fatigue, while the adjustments to pay rates were deemed fair and reasonable. The FWC was satisfied that the agreement was the product of genuine bargaining and did not involve any form of coercion. The FWC concluded that the agreement was consistent with the principles of the Fair Work Act and approved the Timberlink Australia Tarpeena Site Enterprise Agreement 2025.

The final orders of the FWC included the approval of the proposed enterprise agreement, effective from the date of the decision. The agreement was to be implemented and adhered to by both parties, with the FWC retaining jurisdiction to address any disputes arising from the agreement. The decision was communicated to the parties, and the agreement entered into force as per the terms specified.

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Background to the litigation

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Legal Principle Established