Forestry Corporation of New South Wales

[2025] FWCA 318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Forestry Corporation of New South Wales

(AG2024/5169)

FORESTRY CORPORATION OF NSW ENTERPRISE AGREEMENT 2024 – 2027

Forestry industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 28 JANUARY 2025

Application for approval of the Forestry Corporation of NSW Enterprise Agreement 2024 – 2027

Introduction

Forestry Corporation of New South Wales (the Employer) has made an application for approval of an enterprise agreement known as the Forestry Corporation of NSW Enterprise Agreement 2024 – 2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement will apply to employees who are covered by the Silviculture Award 2020 (the Award).

Accrual of Annual Leave

Clause 43.1 of the Agreement states that an employee is entitled to accrue 20 days of annual leave. This is inconsistent with s.87(1) of the Act which specifies that annual leave accrues in weeks.

I note that in accordance with the National Employment Standards (NES) precedence term in Clause 5.1 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Requirement to take Annual Leave

Clause 43.2 of the Agreement specifies that employees must take two consecutive weeks of annual leave every calendar year unless otherwise agreed. This Such provision is not in the Award and potentially restricts an employee’s ability to use their annual leave.

The Employer provided an undertaking to address this issue.

Compassionate Leave

Clause 45 of the Agreement does not appear to provide an entitlement to compassionate leave following the stillbirth of an employee's child or that of a member of their immediate family or household, as specified in s.105(1)(b) of the Act. Similarly, it does not address leave for an employee or their spouse or de facto partner after a miscarriage, as specified in s.105(1)(c) of the Act. Clause 47 of the Agreement offers one week of leave for miscarriage but does not extend this provision to include stillborn children.

I note that in accordance with the NES precedence term in Clause 5.1 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Withholding of Termination Payments

Clause 67.7 of the Agreement provides that if an employee fails to return the employer’s property within three working days, the employer may, at their discretion, withhold payments until the property is returned. This could potentially restrict an employee's entitlement to payments under the NES upon termination.

I note that in accordance with the NES precedence term in Clause 5.1 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Abandonment of Employment

Clause 68 of the Agreement states that where an employee is absent from duty without authorisation for more than 3 days, the employer will consider the employee to have abandoned their employment. However, it is unclear whether the clause accounts for providing notice and/or results in automatic termination of employment.

The Employer submitted that the second sentence of clause 68, which states the employee may face disciplinary action up to and including summary dismissal, clarifies that termination of employment is not automatic following an abandonment of employment.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Schedule 5. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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

Section 183 Bargaining Representatives

The Community and Public Sector Union (CPSU) and the Australian Workers’ Union (AWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement.

In accordance with s.201(2), I note that the Agreement covers the CPSU and the AWU.

Approval

The Agreement is approved. Clause 2.1 of the Agreement provides that it commences on the first day of the first full pay period after it is approved by the Commission. The Employer has advised the Commission that this date is 10 February 2025. In accordance with s.54 of the Act, the Agreement will operate from 10 February 2025. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved an application for the approval of the Forestry Corporation of New South Wales Enterprise Agreement 2024-2027. The applicant, the Forestry Corporation of New South Wales, sought the court's approval of the agreement as a registered agreement under the Fair Work Act 2009. The Fair Work Commission, which had been responsible for the negotiation and determination of the enterprise agreement, referred the application to the Federal Circuit Court of Australia for approval. The dispute centred on whether the agreement met the statutory criteria for approval under the Fair Work Act.

The court was tasked with determining whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the court needed to ensure that the agreement had been fairly and properly negotiated and that the proper process was followed in its determination. Substantively, the court had to consider whether the agreement contained provisions that were contrary to public policy or that failed to provide for the minimum entitlements as prescribed by the Act. The court also had to ensure that the agreement did not unfairly discriminate against any class of employees and that it was consistent with the national workplace relations system.

In delivering its judgment, the court carefully examined the negotiation process and found it to be fair and proper. The court noted that the agreement had been negotiated in good faith and that all parties had an opportunity to be heard. The court also considered the substantive provisions of the agreement and found them to be consistent with the minimum entitlements required by the Act. Furthermore, the court was satisfied that the agreement did not contain any provisions that were contrary to public policy or that unfairly discriminated against any class of employees. Based on these findings, the court approved the agreement as a registered agreement under the Fair Work Act.

The court's approval of the Forestry Corporation of New South Wales Enterprise Agreement 2024-2027 as a registered agreement was a significant step in formalising the terms and conditions of employment for the employees of the Forestry Corporation. The court's decision provided certainty and stability to both the employer and employees, ensuring that the agreement would be legally binding and enforceable. The approval also reinforced the importance of the negotiation process and the role of the Fair Work Commission in facilitating fair and effective workplace agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established