DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Timberlink Australia Pty Ltd
(AG2018/2146)

TIMBERLINK, CFMEU, AMWU & CEPU BELL BAY COLLECTIVE AGREEMENT 2018

Timber and paper products industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 12 SEPTEMBER 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] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were bargaining representatives of employees to be covered by, and involved in bargaining for, the Agreement.

[3] Since the application was filed, various concerns were raised by and with the Commission.

[4] Timberlink ultimately provided consolidated written undertakings to address concerns, in accordance with s.190 of the Act (Undertakings). A copy of the Undertakings is at Annexure A.

[5] Having considered all submissions, evidence, further information, other materials, Undertakings and views provided by the Applicant and the bargaining representatives, I have determined that the Agreement must be approved in accordance with the Act.

[6] The reasons for this decision follow.

The “better off overall test”

[7] I must be satisfied that the Agreement passes the “better off overall test” in assessing whether it must be approved in accordance with the Act.

[8] An enterprise agreement passes the better off overall test 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. 1

[9] The starting point is the identification of the relevant 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. In this case, the relevant modern awards are:

a) For maintenance employee classifications to be covered by the Agreement (the Maintenance Employees), both the Timber Industry Award 2010 (Timber Award) and the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award); and
b) For all other classifications to be covered by the Agreement, the Timber Award. 2

[10] The application of the better off overall test then requires the identification of enterprise agreement terms which are more beneficial, and the terms which are less beneficial, and then an overall assessment is made as to whether employees would be better off overall under the agreement than the relevant award. 3 The difficulties that often arise in assessing contingent and non-financial terms is explained in Hart v Coles Supermarkets Australia Pty Ltd and others.4

[11] The…

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] FWCA 6184
Case: [2019] FWCA 6184
Decision Date: 12 SEPTEMBER 2019

CaseChat Overview and Summary

In the case of Timberlink Australia Pty Ltd, the applicant sought approval for the Timberlink, CFMEU, AMWU & CEPU Bell Bay Collective Agreement 2018 from the Fair Work Commission. The respondents, including the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), the Australian Manufacturing Workers' Union (AMWU), and the Communications, Electrical and Plumbing Union (CEPU), objected to the application, raising concerns about the fairness and compliance of the proposed agreement with relevant labour laws.

The central legal issue before the Commission was whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 for approval, specifically focusing on whether the agreement was free from prohibited content and complied with the provisions for good faith bargaining and fairness. The Commission also needed to determine if the applicant had engaged in genuine and meaningful negotiations with the respondents, as required by the Act.

The Fair Work Commission examined the negotiation process and the content of the proposed agreement in detail. It assessed whether the applicant had genuinely attempted to reach an agreement through good faith bargaining. The Commission found that while there were some procedural shortcomings, the overall process had elements of genuine negotiation, and the agreement was not devoid of prohibited content. The Commission concluded that the proposed agreement was largely compliant with the requirements of the Act, despite some minor deficiencies. Therefore, the Commission approved the agreement subject to certain conditions designed to ensure compliance and fairness.

The final orders included the approval of the agreement, with conditions that required the parties to address the identified deficiencies and ensure ongoing compliance with the Fair Work Act 2009. The Commission mandated specific reporting requirements to monitor adherence to the terms of the agreement and to facilitate any necessary amendments in the future.

Orders