If a redundancy by agreement is an option, workers should participate in a formal vote and, with a majority, an enterprise agreement may be cancelled. Within 14 days of such a vote, the Commission should apply for authorisation to terminate the agreement. Assuming that the Commission is convinced that a genuine agreement has been reached, it should be approved. Given the views expressed to Aurizon, Griffin Coal and Murdoch, it is instructive that good faith negotiations are an essential part of any request to terminate an existing agreement. For the three categories of EA available, the FW Act provides that the agreement addresses certain ”authorized issues” which, among these, are not limited to the following: earlier this year, Griffin Coal Mining Company (Griffin Coal) attempted to terminate one of its enterprise agreements at the Commission`s request. Griffin Coal argued that the termination of the contract was necessary because of the company`s financial position, including business losses of nearly $300 million $US since 2011. In another decision, a full-fledged bank did not authorize CFMEU to appeal the decision of a single commissioner to grant Peabody Energy the termination of Sedgman Employment Services Pty Ltd Bowen Basin Front Line Employee Enterprise Agreement 2011-2014. In Gangell/Lobethal Abattoirs Pty Ltd T/A Thomas Foods International (2018), an FWC staff member requested the termination of a 2008 transitional conventional instrument (considered an enterprise agreement under transitional laws). The FWC delayed the decision on the application by two months to allow both the resumption of employment negotiations and conciliation by the FWC. A recent decision by the Fair Work Commission (FWC) in the higher education sector provides guidance for employers facing difficult and lengthy negotiations on enterprise agreements in each sector. The frequent road to terminate an enterprise agreement is requested from the Commission after the agreement has passed its nominal expiry date.
Each party can make such an application. Therefore, in the present circumstances, Full Bench felt that the 12 contracts should be terminated. These decisions show that under the Fair Work Act 2009 (Cth), there are alternatives to the traditional negotiation of an alternative enterprise agreement, which is increasingly available to employers as long as a burning platform and the ability to prove traditional bargaining efforts are demonstrated. Eight months before the expiry of the 14 contracts, Aurizon began negotiating new enterprise agreements with the six unions. Throughout the negotiations, Aurizon has been working to remove these legacy rules. The unions wanted to maintain the provisions and include them in all new enterprise agreements. Although Aurizon and the unions sought and obtained the support of Commission Vice-President Asbury during the negotiations, they did not reach an agreement. AGL Loy Yang Decision In 2017, the full bench of the FWC has again confirmed the termination of an enterprise agreement that affects the ongoing negotiations (see FWCFB 1019). The incident involved employees of the Loy Yang coal mine and the nearby power plant (which supplied 30% of Victoria`s electricity).
The parties had been in negotiations for about 15 months. During this period, the employer had sought FWC assistance under the 240 FW Act (which resulted in 14 conferences with the participation of the FWC), the union had applied in good faith to the FWC for bargaining mandates and there were two union requests for authorized protected action votes. On August 29, 2017, the Fair Work Commission decided to terminate the operating contract for Murdoch University, which employs approximately 3,500 people.
