Timberlink Australia Pty Ltd T/A Timberlink

[2022] FWCA 2608

[2022] FWCA 2608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Timberlink Australia Pty Ltd T/A Timberlink

(AG2022/3038)

Timberlink Australia Tarpeena Site Enterprise Agreement 2022

Timber and paper products industry
COMMISSIONER PLATT	ADELAIDE, 2 AUGUST 2022

Application for approval of the Timberlink Australia Tarpeena Site Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Timberlink Australia Tarpeena Site Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Timberlink Australia Pty Ltd T/A Timberlink (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 27 July 2022.

1. On 1 August 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The National Employment Standards (NES) issues below require comment:

·   Clause 19.5(a) of the Agreement provides that the period of notice does not apply in the case of dismissal for conduct that justifies instant dismissal including malingering, inefficiency, or neglect of duty. Clause 19.5(f) and (g) further provide that the period of notice does not apply to special workers or support staff respectively. These provisions appear broader than the exclusions from provisions of notice listed at s.123(1) of the Act.

·   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. Clause 40.10 of the Agreement allows for annual leave taken in advance but not accrued to be deducted from whatever remuneration is payable on termination. These clauses appear to allow for deductions from accrued NES entitlements.

·   Clause 21.1(c) of the Agreement provides that termination by abandonment operates from the date of last attendance or the last day in respect of which consent was granted or notification given. Section 117(1) of the Act provides that an employer may not terminate an employee’s employment without notice of the date of termination, which may not be a date before the notice is given.

·   Clause 40.2(a)(ii) of the Agreement provides that the employer may require an employee to take one week of annual leave per year as scheduled by the employer, and clause 40.2(b)(i) requires that kilns employees take annual leave as scheduled. It is unclear if these requirements are reasonable, as required by s.90(3) of the Act.

·   Clause 42.3(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(3) 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.

·   Clause 42.4(a) of the Agreement requires employees to provide a leave form and any evidence of absence within three working days of returning to work. Section 107(3) of the Act does not to impose a timeframe on the provision of evidence or allow for leave forms as a precondition of leave.

·   Clause 43.1 of the Agreement does not appear to provide compassionate leave for stillbirth/miscarriage consistent with s.104(1)(b) and (c) of the Act.

·   Clause 46.4(a) of the Agreement allows for substitution of public holidays by majority agreement. Section 115(3) of the Act allows for individual substitution only.

1. Clause 3.1 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 2 August 2022. The undertaking deals with the following topics:

·   The definition of a shift worker will be for the purposes of the NES.

·   Ordinary hours of work for day workers shall be an average of 38 per week and will be worked between the hours of 6.30am and 6.00pm Monday to Friday.

·   Part-time employees will be engaged for a minimum shift period of three hours.

·   No employees covered by the Agreement will be engaged as pieceworkers.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a bargaining representative for the Agreement, has given 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 that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2025.

COMMISSIONER

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