Timberlink Australia Pty Ltd

[2019] FWC 5712

[2019] FWC 5712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Timberlink Australia Pty Ltd
(AG2018/2146)

DEPUTY PRESIDENT MANSINI MELBOURNE, 19 AUGUST 2019

Application for approval of the Timberlink, CFMEU, AMWU & CEPU Bell Bay Collective Agreement 2018.

[1] Timberlink Australia Pty Ltd (Timberlink) has applied for approval of a single enterprise agreement known as the Timberlink, CFMEU, AMWU & CEPU Bell Bay Collective Agreement 2018 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] This decision resolves a dispute about modern award coverage for maintenance employees covered by the Agreement, a threshold issue to be determined before assessing whether the Agreement must be approved in accordance with the Act.

[3] I have determined that the relevant reference instruments for maintenance employees covered by the Agreement are the Timber Industry Award 2010 (Timber Award) and the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). The reasons for this decision follow.

Concerns about the application

[4] Since the application was filed in May 2018, various concerns were raised by and with the Commission. Those concerns relate to:

a) Whether the Agreement passes the “better off overall test”;

b) Whether the Agreement includes the mandatory terms; and

c) Apparent deficiencies in materials lodged with the application.

[5] At the requests of the parties, the Commission accepted an extensive series of submissions, witness evidence, proposed undertakings and views of the bargaining representatives in relation to the concerns.

[6] As the requisite satisfaction was not achieved, a hearing was convened on 22 March 2019. The objectordid not attend. Timberlink requested a further opportunity to provide submissions and evidence. The objector was also permitted to file further materials and provided further submissions in reply.

[7] A further mention took place on 22 July 2019. The objector subsequently sought to file further submissions. The final submissions were received on 26 July 2019.

What is the relevant award(s) for the purposes of the BOOT?

The issue

[8] In its statutory declaration accompanying the application, Timberlink stated that the Timber Award covers the employer and employees who would be covered by the Agreement. It did not identify how each of the classifications in the Agreement translate.

[9] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives, filed statutory declarations which respectively declared agreement with Timberlink’s statutory declaration.

[10] However, in the course of responding to the various concerns raised during the proceedings, the AMWU sought to argue the relevance of the Manufacturing Award. That contention was ultimately refined to the following key issue: is the Manufacturing Award or the Timber Award “the more appropriate award” to cover the maintenance employees, for the purposes of the Commission’s better off overall test assessment?

[11] Timberlink strongly opposed, maintaining that only the Timber Award is relevant to the Commission’s assessment of the application. At the Commission’s request, it provided further information to identify how the classifications in the Agreement are said to translate.

[12] In summary, it is not disputed that the Timber Award covers employees covered by the Agreement. The issue is whether the Manufacturing Award also covers a class of maintenance employee(s) covered by the Agreement.

Applicable law

[13] I must be satisfied that the Agreement passes the better off overall test (BOOT) in assessing whether it must be approved in accordance with the Act. 1

[14] An enterprise agreement passes the BOOT if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 2 

[15] The BOOT assessment necessarily requires the identification of the modern award(s) that cover an employee and would cover a prospective employee, in relation to work that the employee or prospective employee may perform under the Agreement.

[16] A modern award covers an employer or employee if the award is expressed to cover the employer or employee. A modern award covers an employee in relation to particular employment. 3 

[17] Whether a modern award covers an employer or employee in relation to particular employment depends on the objective meaning of the words used to define modern award coverage, bearing in mind the context in which those words appear and the purpose they are intended to serve. 4 

[18] Interpretive guidance on award coverage may also be drawn from the “principal purpose” or “substantial character” tests in relation to whether an employee is covered by a particular modern award, but only where necessary and/or appropriate. 5 

[19] It is clear from the references to “each award covered employee” 6 and “each prospective award covered employee”7 in s.193(1) that every employee and prospective employee must be assessed as better off overall under the Agreement than if the relevant modern award applied to that employee or prospective employee, as at the test time.8 However, s.193(7) permits the Commission to be satisfied, in particular circumstances, that all employees and prospective employees in a class of employees or prospective employees will be better off if the enterprise agreement applied to that class than if the relevant modern award applied to that class.9

About the Mill and the work of its Maintenance Department employees

[20] Timberlink runs a saw mill in Bell Bay, Tasmania (the Mill). At the time of the application, it employed 152 persons who would be covered by the Agreement.

[21] The only evidence before the Commission is that of the Mill’s Facility Manager. It described the functions performed at the Mill as debarking pine logs, processing the pine logs into various timber products and warehouse and dispatch of the finished goods within Tasmania and mainland Australia.

[22] Further, that 31 of the 152 employees to be covered are full time Maintenance Department employees, engaged to support production and production staff by maintaining core fixed plant including debarker and log decks, sawmill, dry mill, boiler kilns and treatment plant. These roles also maintain ancillary equipment including saws, chippers, conveying systems, timber kilns and boiler, packaging and strapping machines and lighting and power supply.

[23] The Maintenance Department consists of Mechanical Fitter tradespersons (trade qualified), Electrical tradespersons (trade qualified), Lubricating Technicians (non trade) and a Stores person (non trade).

[24] Contractors are responsible for maintaining mobile plant (forklifts) and vehicles on site.

[25] The AMWU did not seek to challenge Timberlink’s evidence of the nature of the work performed at the Mill or file any additional evidence.

The Agreement

[26] The Agreement is expressed 10, at clause 5.1, to cover:

“(a) Timberlink in respect of all employees, and all new employees employed, at the Bell Bay Sawmill and working in classifications within the scope of the Timber Industry Award 2010.

(b) the Construction, Forestry, Mining and Energy Union, Forestry and Furnishing Products Division, and its officers and members employed at the Bell Bay Sawmill,

(c) The Australian Manufacturing Workers Union, and its officers and members employed at the Bell Bay Sawmill,

(d) The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and its officers and members employed at the Bell Bay Sawmill,

(e) All employees and new employees employed at the Bell Bay Sawmill and working in classifications in the schedules of this Agreement.”

[27] The Agreement schedules include a “Schedule A – Wage Rates and Classification Matters” which relevantly provides that:

“A.2 For the purpose of classification in this structure production employees will be classified in accordance with the classifications set out in the Timber Industry Award 2010 and maintenance employees will be classified in accordance with the structure set out in Schedule D to this agreement.”

[28] At A.5, Schedule A goes on to set out the 38 hour week rates of pay for each classification. It includes classifications and rates of pay for a range of levels of “Mech/Elect Tradesperson” in the “Maintenance Area” (from C3 through to C11).

[29] Schedules B and C contain provisions for a transition from a 45 to 38 hour week and a classification structure review, both to occur during the life of the Agreement.

[30] Schedule D is titled “Maintenance Classification Structure” and details the title, minimum training requirements and wage relativity for each classification level (from C1 to C14).

The Timber Award

[31] The Timber Award is expressed at clause 4 to be an industry award which covers:

“..employers throughout Australia in the industry sectors described in clause 4.2 and to work and persons performing such work as listed in the skill grade structures, as described in Clause 3 – Definitions and interpretation. Without limiting the scope of this award it applies to the following types of work in the forest and building products, manufacturing and merchandising, and pulp and paper sectors and persons performing such work or employed in connection with the following work, to the exclusion of any other modern award.”

[32] The activities are then arranged into industry sectors, with the potential for overlap expressly acknowledged:

a) Harvesting and forestry management sector;

b) Milling and processing sector;

c) Panel products sector;

d) Manufacturing sector;

e) Merchandising and retailing sector;

f) Pulp and paper sector.

[33] Most relevantly, the milling and processing sector is defined as:

(i) Processing of logs and other forms of raw timber into building timber and other value-added products in timber mills, factories, merchant’s premises and other locations.

(ii) Processing includes lifting, sorting, stacking, storing, warehousing transporting, debarking, sawing, dressing, drying, machining, laminating, jointing, chipping, treating and carrying out any grading, labelling and clerical functions associated with processing.

(iii) Operation of any machinery used in processing or in connection with processing including plant and infrastructure and any maintenance associated with such machinery, plant or infrastructure.

(iv) Assembling and construction of products from processed timber.

(v) Supervision, co-ordination and planning of the processing activities and processing infrastructure.

[34] The manufacturing sector is also defined to include all activities listed in the milling and processing sector at clause 4.2(b).

[35] Clause 5 sets out exclusions from coverage:

“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”

[36] Classifications are defined in Schedules to the Timber Award by level and organised into three broad streams:

a) Schedule B - General Timber Stream;

b) Schedule C - Wood and Timber Furniture Stream;

c) Schedule D - Pulp and Paper Stream.

[37] Schedule B provides, for each level, a classification defined by its skills, qualifications and indicative tasks or duties. Levels 4, 5, 6 and 7 each include skills and indicative tasks for work in the “Milling and processing sector” which appear relevant in the context of the Mill and work performed by its Maintenance Department employees. 11

The Manufacturing Award

[38] The Manufacturing Award is an occupational award, expressed at clause 4.1 to cover:

“..employers throughout Australia of employees in the Manufacturing and Associated Industries and Occupations who are covered by the classifications in this award and those employees”.

[39] An exclusion at clause 4.2 provides that the Manufacturing Award does not cover:

“..an employer who is outside the scope of clause 4.9(a) or (b) unless such employer employs an employee covered by clause 4.9(c) and the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee”.

[40] The scope of clause 4.9(a) includes, at (i):

“the manufacture, making, assembly, processing, treatment, fabrication and preparation of: the products, structures, articles, parts or components set out in clause 4.10, or the materials or substances set out in clause 4.10, or any products, structures, articles, parts or components made from or containing the materials or substances set out in clause 4.10”.

[41] It also includes, at clause 4.9(a)(iii):

“the repair, refurbishment, reconditioning, maintenance, installation, testing and fault finding of: any of the items referred to in clause 4.9(a)i) or .. plant, equipment and buildings (including power supply) in the industries and parts of industries referred to in clauses 4.9(a)(i)… or in any other industry).”.

[42] Clause 4.9(c) then lists the following occupations: maintenance employees in the engineering streams; technical workers; draughtspersons; production planners; trainee engineers; trainee scientists; engine drivers.

[43] “Engineering streams” is defined at clause 3 to mean:

“..the three broad engineering streams recognised within the classification definitions set out in Schedule B namely, electrical/electronic, mechanical and fabrication. The streams are defined as the:

“(a) electrical/electronic stream which includes the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of all electrical and electronic devices, systems, equipment and controls, such as electrical wiring, motors, generators, PLCs and other electronic controls, instruments, refrigeration, telecommunications, radio and television, and communication and information processing.

(b) mechanical stream which includes the design, assembly, manufacture, installation, modification, testing, fault finding, commissioning, maintenance and service of all mechanical equipment, machinery, fluid power systems, automotive mechanics, instruments and refrigeration, and the use of related computer controlled equipment, such as Computer Numeric Controlled machine tools.

(c) fabrication stream which includes fabrication in all materials, forging, carpentry, plumbing, founding, structural steel erection, electroplating, metal spinning, metal polishing and sheet metal work and the use of related computer controlled equipment.”

[44] Schedule B of the Manufacturing Award includes classifications C1 to C14, along with minimum training requirements and wage relativities to C10.

Views of the bargaining representatives

[45] Whilst all bargaining representatives ultimately support approval of the Agreement, the AMWU maintains its objection to the basis on which the Commission should reach its satisfaction.

Consideration

[46] The Commission’s task in assessing the application for approval of the Agreement requires the identification of the relevant modern award(s) which cover the classes of employees and prospective employees covered or to be covered by the Agreement.

[47] It is not contentious that the Agreement covers classes of employees and prospective employees who are or would be covered by the Timber Award. But what is the relevant reference instrument(s) for the Maintenance Department employees?

[48] Timberlink was unclear about its position on the relevant classification in the Timber Award for Maintenance Department employees covered by the Agreement. First, it provided a statutory declaration which did not identify any relevant award classification for the Maintenance Department employee classifications in the Agreement. 12 Then, it sought to rely on an amended statutory declaration in which it declared that the Timber Award contains only one classification relevant to Timberlink’s trade qualified maintenance employees, being Level 7.13 However, it simultaneously submitted that the Timber Award expressly provides for trade workers including maintenance employees at Level 5 as well as Level 7. 14

[49] In any event, Timberlink clearly invites the Commission to accept that only the Timber Award is relevant to its current and prospective Maintenance Department employees, at all levels, from C3 to C11. In summary, it argues that the Timber Award has primacy and therefore wholly excludes the Manufacturing Award. Specific submissions were made that Timberlink is not within scope of “Manufacturing and Associated Industries and Occupations” as defined at clause 4.9(a), (b) and (c) of the Manufacturing Award.

[50] The AMWU agrees (if that is in fact the position of Timberlink) that the only classification in the Timber Award relevant to the Maintenance Department classifications in the Agreement is Level 7. 15

[51] However, the AMWU submits that more than one award can cover an employer, as expressly stated at clause 5.5 of the Timber Award. It argues that the Manufacturing Award is most appropriate to the work performed and environment in which it is normally performed, for Maintenance Department Levels C5, C6, C8, C9 and C10 in the Agreement. It appears to concede that Maintenance Department Level C7 in the Agreement may be covered by Level 7 of the Timber Award. It disputes Timberlink’s arguments about the application of clause 4.9 of the Manufacturing Award (relying on sub-clauses (a) and (c) as being engaged).

[52] Clause 4 of the Timber Award is plainly expressed to cover Timberlink in relation to its Mill. The exclusions at clause 5 also plainly contemplate that an employer covered by the Timber Award may also be covered by other award(s). Submissions were focussed on the question of which award classification is most appropriate to the work performed by the employee and the environment in which it is normally performed. However, the note to the exclusions in the Timber Award also contemplates a circumstance where there is no classification in the Timber Award in which case an occupational award may apply. 16

[53] In considering the terms of the Manufacturing Award, even if Timberlink is not within scope of the industries and parts of industries defined at clause 4.9(a), on the materials before the Commission I consider that the Maintenance Department employees covered by the Agreement are able to fall within the occupations at clause 4.9(c). In accordance with clause 4.2, the Manufacturing Award may be engaged in this circumstance if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee.

[54] However the question of award coverage in this context requires a consideration of the the terms of the Agreement itself.

[55] Importantly, the terms of the Agreement do not confine or limit coverage to those employees performing maintenance duties covered by the Timber Award. To the contrary, clause 5.1 of the Agreement expressly provides that it covers employees “working in classifications within the scope of the Timber Industry Award 2010” and also provides that it covers “all employees and new employees working in classifications in the schedules of this Agreement”.

[56] Maintenance Department classifications are listed in Schedule D (the wages schedule at A.2 of the Agreement reinforces this as the appropriate reference point). Schedule D, on its face, imports classifications in identical terms to that in Schedule B of the Manufacturing Award. This is a broad list which specifies no more than a classification level, classification title, minimum training requirement and wage relativity to C10. It includes nothing which would limit this broad list to the maintenance related roles or work covered by the Timber Award.

[57] Regardless of whether this is irrelevant or unintentional drafting (as Timberlink submits) or whether there is evidence of current employees in this class, I consider that the Agreement as made conceivably covers the employment of Maintenance Department employees for whom there is no classification in the Timber Award and would be covered by the Manufacturing Award.

[58] Finally it is noted that, in the context of the plain language of the awards and the Agreement, the industrial history and context (whilst useful to understanding the genesis of the present issue) is not particularly helpful to determining the relevant reference instruments and assessing the application in this matter.

Other concerns

[59] Other concerns raised with or by the Commission in relation to whether the Agreement must be approved in accordance with the Act are summarised above. 17

[60] Materials were provided on 12 October 2018, 23 October 2018, 12 November 2018, 28 November 2018, 11 January 2019, 13 February 2019, 14 February 2019, 15 March 2019, 29 March 2019 and 1 April 2019 in relation to those concerns. On 15 March 2019, consolidated undertakings were provided by Timberlink. The bargaining representatives have been afforded the opportunity to provide their views in relation to the undertakings and no opposition expressed.

[61] However, in light of the resolution of the Award coverage issue in this decision, a further opportunity for undertakings and the views of bargaining representatives will be afforded.

[62] For completeness, it is noted that the AMWU accepts that the incorporation of the Manufacturing Award was always disputed in bargaining but never agreed. I am satisfied that there is no cause for concern about whether the employees genuinely agreed to the Agreement in this regard or in light of the above determination of the award coverage. 18

Conclusion

[63] For the above reasons, and on the materials before the Commission in the present matter, I am not able to be satisfied that the Agreement would apply to Maintenance Department employees who are or may be engaged to perform work that is covered by the Timber Award to the exclusion of the Manufacturing Award. Accordingly, both the Timber Award and the Manufacturing Award are relevant reference instruments for the purposes of the Commission’s better off overall test assessment.

[64] The Commission will separately correspond with Timberlink and the bargaining representatives to invite further undertakings and any views about any further undertakings, following which a final determination of this application will be made.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711394>

ANNEXURE A – Extracts from Timber Award, Schedule B – Classification Structure and Definitions for the General Timber Stream

B.4 Level 4

B.4.1 General

[…]

(b) Indicative tasks

[…]

(ii) Milling and processing sector

•  maintains and fault finds on plant and equipment (including lubrication);

•  maintains mill buildings;

•  performs non-trade carpentry functions;

•  operates and maintains mobile equipment (multi-skilled operator—loader, forklift, crane, mobile crane with lifting capacity not exceeding 20 tonnes) while holding appropriate licenses/certifications;

•  demonstrates intermediate keyboard skills including CNC operations in saws and/or machines where the operator controls one process only;

•  sets up, monitors and operates twin edgers, single and double bandsaws, bench saw not cutting to size;

•  operates optimising docker (computerised) and finger jointer;

•  where the employee has completed a recognised stress grading course, grades timber (includes mechanical stress grader);

•  undertakes primary conversion of logs (no sizing);

•  analyses log moisture content and selects preservation method;

•  prepare preservation solution and appropriate paperwork at the appropriate level;

•  loads/unloads cylinder and monitors faulty operation at the appropriate level;

•  laminated beam maker—responsible for setting up machine, setting out product and operating machine other than on a continuous basis;

•  selects, grades and marks materials for re-manufacture and from stock for filling orders, including tallying, measuring and checking of complete orders and compiling for dispatch;

•  storeperson including: inventory and stores control, VDU operation and use of other electronic equipment, e.g., scanner or using intermediate keyboard skills to carry out stores work, storing and packing of goods and materials in accordance with appropriate procedures and/or regulations; preparation and receipt of appropriate documentation including liaison with suppliers; allocating and retrieving goods from specific warehouse areas; periodic stock-checks;

•  gatekeeper in control of movement of persons, vehicles, stock and material at gatehouses and similar locations including vehicles carrying goods of any description, to ensure that the quantity and description of such goods is in accordance with the requirements of the relevant document/gate pass; utilising monitoring and operating computer based systems requiring data input, or other advanced monitoring system;

•  operates and maintains hydraulic debarking equipment;

•  attends boiler/kilns as required and responsible for temperature readings and records, including a watchperson who attends boilers;

•  sharpens saws (with or without tensioning) chainsaws, hand tools, knives, grinds and sharpens debarker/chipper blades and operates punching press for saws (without tipping);

•  operates and maintains mechanical stacking and sorting equipment;

•  attends to two or more boilers or two or more suction gas generators, or one boiler the evaporation capacity of which attributed thereto by the maker exceeds 5 000 kg but less than 45 000 kg of steam per hour, or one gas generator supplying a total engine load capacity attributed thereto by the maker of not less than 740 kW;

•  operates suction gas and other internal combustion engine 35 kW brake power or over; and

•  operates any of the following items of mechanical plant: crawler tractor using power operated attachments up to 8000 pounds shipping weight, excavator up to and including 0.5 cubic metre capacity, grader, power operated below 35 kW brake power, loaders, front end and overhead, over 2.25 cubic metres up to and including 4.5 cubic metres, pneumatic tyred tractor using power operated attachments in excess of 110 kW brake power.

B.5 Level 5

B.5.2 Timber tradesperson Level 5

(a) A Timber tradesperson Level 5 or machinist A grade is an employee who holds a Trade Certificate or Tradespersons Rights Certificate as a tradesperson in one of the classes identified appropriate to the sector in which they work and is able to exercise the skills and knowledge of that trade and may be required to supervise other employees.

(i) Milling and processing sector trades

•  Timber tradesperson—sawdoctor;

•  Timber tradesperson—wood machinist; and

•  Timber tradesperson—millwright.

[…]

(b) Indicative tasks

(ii) Milling and processing sector, Manufacturing sector and Merchandising sector: Timber tradesperson Level 5

•  understands and applies quality control techniques for self and others;

•  exercises good interpersonal and communication skills;

•  exercises keyboard skills at a level higher than Level 4;

•  exercises discretion within the scope of this level;

•  performs work under limited supervision either individually or in a team environment;

•  operates all lifting equipment incidental to own work;

•  performs non-trade tasks incidental to own work;

•  performs work which, while primarily involving the skills of the employee’s trade, is incidental or peripheral to the primary task and facilitates the completion of the whole task; such incidental or peripheral work would not require additional formal technical training;

•  performs work within the definition of machinist A grade;

•  performs work of a motor mechanic;

•  performs work of a glazier;

•  inspects products and/or materials for conformity with established operational standards as required; and

•  sets up, monitors and operates a range of pre-set wood machines appropriate to this level including multi headed square dresser.

[…]

B.5.3 Harvesting, milling and processing, Manufacturing or Merchandising employee Level 5

[…]

(ii) Milling and processing sector

•  operates a breaking down rig (primary conversion with sizing);

•  operating no. 1 bench;

•  supervision of kiln operations;

•  hardens/tempers/beats out saws;

•  weighs and records loads of timber and maintains security of the premises;

•  operates ship loading equipment;

•  laminated beam maker—responsible for setting up machine, setting out product and operating machine on a continuous process;

•  sets up and operates a range of wood machines within the current definitions of the award appropriate to this level; and

•  operates mechanical plant and mobile equipment including, crawler tractor with a shipping weight exceeding 80 000 pounds, excavator over 2.25 cubic metres, power operated grader over 70 kW brake power, loaders over 4.5 cubic metres capacity, mobile cranes with a lifting capacity over 20 tonnes and not exceeding 100 tonnes.

[…]

B.6 Level 6

B.6.1 General

(a) An employee at this level may be employed under one of the following categories:

(i) Timber tradesperson; or

(ii) production or merchant employee.

(b) A Timber tradesperson at this level works above and beyond an employee at Level 5 and is competent to perform work within the scope of this level.
[…]
B.6.2 Timber Tradesperson

A Timber tradesperson Level 6 is a saw doctor tradesperson who has completed an appropriate post trade course in maintaining high tension saws and stellite tipping, or a wood machinist tradesperson who has completed an appropriate post trade course (or equivalent) in CNC and PLC machinery operations and CAD design systems and is able to exercise the skills and knowledge of that trade and may be required to supervise other employees, or a millwright—special class who has completed 3 appropriate modules of post-trade training in addition to the Level 5 qualification requirements.

(a) Indicative tasks

An employee at this level will perform any or all of the tasks listed below and will be expected, after suitable training, to operate flexibly between work stations at this level:

(i) Milling and processing sector, Manufacturing sector and Merchandising sector: Timber tradesperson Level 6

•  exercises the skills attained through satisfactory completion of the training prescribed for this classification subject to the standards of this award;

•  exercises discretion within the scope of this level;

•  works under limited supervision either individually or in a team environment;

•  understands and implements quality control techniques;

•  provides trade guidance and assistance as part of a work team;

•  exercises trade skills relevant to the specific requirements of the enterprise at a level higher than Timber tradesperson Level 5;

•  supervision and training of employees as required; and

•  ability to plan, conduct and evaluate training both on and off-the-job, one-to-one and in groups.

[…]

B.7 Timber tradesperson millwright—special class Level 7 (relativity 115%)

B.7.2 A Timber tradesperson millwright—special class Level 7, is a millwright who has completed nine appropriate modules in addition to the requirements of Level 5; or nine appropriate modules towards an Advanced Certificate; or nine appropriate modules towards an Associate Diploma; or an AQF Level 4 National Certificate.
(a) Duties
An employee at this level performs trade and non-trade functions. In addition to the tasks required to be performed at Timber tradesperson Level 6, a Timber tradesperson Level 7 employee may perform the following indicative tasks:

(i) provides trade guidance and training;

(ii) provides training to other employees in the enterprise;

(iii) assists in the management/operation of a quality control/assurance program;

(iv) assists in the management/operation of best practice program;

(v) exercises complex, new high precision, trade skills;

(vi) applies advanced computer numerical control techniques in machining;

(vii) exercises intermediate CAD/CAM skills;

(viii) commissions and fault finds on new equipment and approves first off samples; or

(ix) performs or assists in design work involving drafting or planning (e.g. preparation of cutting lists).

 1   Pursuant to s.186(2) of the Act, noting the BOOT is just one of the matters about which the Commission must be satisfied.

 2   ss.193(1) and (6) of the Act.

 3   s.48 of the Act.

 4   Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 (Coles) at [22].

 5   Coles at [14]; Carpenter v Corona Manufacturing 122 IR 387 at [9]. See also Graham v Globus Medical Australia Pty Ltd[2016] FWCFB 5495; The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd[2014] FWCFB 5643; Mitolo Group Pty Ltd v National Union of Workers [2015] FWCFB 2524.

 6   Defined at s.193(4) of the Act.

 7   Defined at s.193(5) of the Act.

 8   Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery [2017] FWCFB 1664 at [11].

 9   Loaded Rates Agreements [2018] FWCFB 3610 at [102]-[103].

 10   In accordance with an application to correct a typographical error, to include cl.5.1(d) as extracted above.

 11   Refer extract at Annexure A to this Decision.

 12   Timberlink’s Statutory Declaration of 11 May 2018.

 13   Timberlink’s Amended Statutory Declaration of 14 March 2019.

 14   Timberlink’s Submissions of 15 March 2019.

 15   AMWU’s Final Submissions of 26 July 2019 and Submissions of 23 October 2019.

 16   Being a scenario specifically considered by a Full Bench of the Commission, in the award modernisation process, see Award Modernisation [2008] AIRCFB 1000.

 17   See paragraph [4] of this Decision.

 18   For example, as identified by Full Benches of this Commission in CFMEU v Shamrock Civil Pty Ltd[2018] FWCFB 1772 and AWU v Wagners Industrial Services Pty Ltd [2019] FWCFB 1731.