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…

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

AGLC: Timberlink Australia Pty Ltd [2019] FWC 5712
Case: [2019] FWC 5712
Decision Date: 19 AUGUST 2019

CaseChat Overview and Summary

The case of Timberlink Australia Pty Ltd and Others versus CFMEU, AMWU, and CEPU involved an application for the approval of the 2018 Bell Bay Collective Agreement. The applicants sought to have the agreement, which was intended to govern the terms and conditions of employment for their workers, approved under the Fair Work Act 2009. The respondents were trade unions representing the employees.

The primary legal issue before the court was whether the proposed collective agreement met the statutory criteria for approval under the Fair Work Act. The court had to determine if the agreement was sufficiently comprehensive, did not contain any terms that were contrary to public policy, and did not undermine the operation of the safety net of minimum wages and conditions. Furthermore, the court needed to assess if the agreement was made in good faith and whether the process followed in its creation was fair.

The court examined the provisions of the proposed agreement and found that it complied with the requirements of the Act. It was comprehensive in covering a wide range of employment terms and conditions, did not include any terms that were contrary to public policy, and preserved the safety net of minimum wages and conditions. The court also determined that the agreement was made in good faith and that the process followed in its creation was fair, as it involved genuine negotiations between the parties. As a result, the court approved the collective agreement, thereby resolving the dispute in favour of the applicants.

In approving the collective agreement, the court issued orders under section 233 of the Fair Work Act, affirming the agreement as a registered instrument. This decision allowed the agreement to come into effect and be binding on the parties involved, providing a clear framework for the terms and conditions of employment for the workers in the Bell Bay region.

Orders