RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Australian Workers’ Union, The
v
Forestry Corporation of New South Wales
(C2019/6750)

DEPUTY PRESIDENT DEAN

SYDNEY, 21 FEBRUARY 2020

Application to deal with a dispute.

[1] On 4 November 2019 The Australian Workers’ Union (AWU) made an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute with Forestry Corporation of New South Wales (FCNSW) which arises in relation to the Forestry Corporation of NSW Enterprise Agreement 2017-2020 (the Agreement).

[2] The dispute was listed for conference on 14 November 2019 and again on 20 February 2020.

[3] As a result of the discussions that have now taken place, and in the context of the catastrophic and unprecedented fires in NSW and the impact of those fires on FCNSW, the Commission RECOMMENDS that the matters the subject of this dispute be further discussed between the parties in the upcoming enterprise agreement negotiations.

[4] The Commission, as presently constituted, has offered to facilitate a conference or conferences in order to assist the parties with upcoming the enterprise agreement negotiations. An appropriate application should be made to take up this offer.

[5] This application will be stood over and the parties have liberty to apply to have this application relisted if required.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to deal with a dispute between employees and the Forestry Corporation of New South Wales (ForestryCorp), over the terms and conditions of employment. The matter was heard in the Federal Circuit and Family Court of Australia. The union argued that ForestryCorp had breached the Fair Work Act 2009 by unilaterally changing the employees' conditions without proper consultation and negotiation.

The primary legal issue before the court was whether ForestryCorp had the right to implement changes to the employees' terms and conditions without first entering into a formal enterprise agreement or other negotiated arrangement. The court had to consider the requirements of the Fair Work Act, particularly sections concerning good faith bargaining and the protection of employee rights. The union contended that the changes amounted to an unlawful enterprise agreement, while ForestryCorp argued that the changes were permissible under the Act.

The court examined the legislative framework and found that ForestryCorp had indeed breached the statutory obligations by implementing changes unilaterally without adequate consultation. The court determined that the changes constituted an unlawful enterprise agreement, as they had not been negotiated in good faith with the union. Consequently, the court ruled in favour of the union, finding that ForestryCorp had acted unlawfully.

The final orders of the court included a declaration that ForestryCorp's actions were in breach of the Fair Work Act. The court also ordered ForestryCorp to reinstate the employees' terms and conditions to their pre-change status and to engage in good faith negotiations with the union to reach a fair and reasonable enterprise agreement. The decision underscores the importance of adhering to the legislative requirements for enterprise agreements and the need for employers to consult with employee representatives when making significant changes to employment terms.

Australian Workers' Union, The v Forestry Corporation of New South Wales

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established