Aurizon Operations Limited: Aurizon Network Pty Ltd[2015] FWCFB 540

 

A Full Bench of the Fair Work Commission FWC”) has ordered the termination of 12 enterprise agreements that had passed their nominal expiry dates.

 

Aurizon was privatised by the Queensland government in 2010, with the new “privatised” entity taking on the more generous and somewhat inflexible working conditions imported (pun intended) by the EBA’s, such as:

 

  • Prohibition on forced redundancies.
  • Restrictions in rostering.
  • Tasks employees could be asked to perform.

 

The FB stated that:

 

  • There is no inherent inconsistency between “the termination of an enterprise agreement that has passed its nominal expiry date and the continuation of collective bargaining in good faith…agreement.”
  • Termination of an unproductive agreement might actually further the objects of the FWA by incentivising the negotiation of a replacement agreement.

 

The FB considered:

 

  • Bargaining had reached a stalemate.
  • Aurizon undertook that the employees’ wages and allowances under the agreements would continue for six months.
  • Changes sought by Aurizon were “rationally based” on a desire to change “clearly inefficient” work practices.
  • Many provisions in the agreements were “not common” and were imposed on Aurizon as a result of the company’s “peculiar history” of privatisation.

 

The FB thus concluding that the termination of the expired EBA’s was both appropriate and consistent with the public interest.

 

By way of commentary, this decision may provide hope for businesses that have taken over another business (transmission) that have expired EBA’s to revisit the contents that may be negotiable by virtue of their restrictive or unproductive work practices.

Note:

 

Once an enterprise agreement reaches its nominal expiry date, it operates indefinitely until it is replaced by another agreement or is terminated by the FWC.

 

If terminating an EBA after its expiry date the FWC must be satisfied that:

 

  • It is not contrary to the public interest to do so; and
  • It is appropriate to terminate the agreement taking into account all the circumstances, including the views of the parties covered by the agreement and the likely effect that the termination will have on each of them.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.