Forestry Corporation of New South Wales

[2025] FWCA 318

[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

1. 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.

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

Accrual of Annual Leave

1. 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.

1. 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

1. 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.

1. The Employer provided an undertaking to address this issue.

Compassionate Leave

1. 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.

1. 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

1. 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.

1. 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

1. 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.

1. 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

1. 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

1. 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

1. 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.

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

Approval

1. 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

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