ENTERPRISE AGREEMENTS – termination of agreement – s.225 Fair Work Act 2009 – application by AGL Loy Yang P/L for termination of the Loy Yang Power Enterprise Agreement 2012 – nominal expiry date of Agreement was 31 December 2015 – application was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Electrical Trades Union of Victoria branch) (ETU) and the Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) – Agreement covers about 578 employees at the Loy Yang A Power Station (Station) and adjacent open cut brown coal Loy Yang Mine (Mine) at Traralgon in Victoria – AGL Loy Yang cited a range of provisions in the Agreement it claims unduly restricts its ability to make changes to its operations to increase productivity and reduce inefficiencies – Loy Yang commenced negotiations for a new agreement with Unions in July 2015 – in April 2016 AGL Loy Yang filed a bargaining dispute application under s.240 of FW Act, followed almost immediately by the CFMEU’s application under s.229 for bargaining orders – s.240 process is ongoing – Commission declined to make the orders sought by the CFMEU [[2016] FWC 3376] – in May 2016 the CFMEU made application for a protected action ballot order (PABO) under s.437 – application dismissed because Commission not satisfied at that time that the CFMEU had been or was genuinely trying to reach agreement [[2016] FWC 4364] – appeal by CFMEU about decision dismissed by Full Bench [[2016] FWCFB 6332] – in September 2016 the CFMEU made further application for a PABO under s.437 – application was heard, determined and granted by Commission [[2016] FWC 7839] – AGL Loy Yang has stated it will continue to bargain in good faith for a new agreement in the event the Agreement is terminated – for a period of three months following the termination AGL Loy Yang will maintain certain conditions from the Agreement it says are significantly more beneficial than the Electrical Power Industry Award 2010 minimum terms and conditions – Commission must terminate the Agreement if satisfied that it is not contrary to the public interest to do so and consider it appropriate to do so taking into account all the circumstances, including the views of the employees, AGL Loy Yang, the CFMEU and the other Unions and their circumstances, including the likely effect the termination will have on each of them – Aurizon adopted – Kellogg applied – Commission satisfied it was not contrary to the public interest to terminate the Agreement – satisfied that the dispute is intractable as things currently stand – Commission persuaded that a change in the status quo through the termination of the Agreement will better support good faith bargaining for a new agreement that delivers productivity benefits – termination of the Agreement will change the bargaining dynamic but this is not counter to the object of a fair framework for collective bargaining and facilitating good faith bargaining [Aurizon] – Commission accepted there was opposition to the termination of the Agreement from the Employees – found this was not insignificant and their concern at the prospect of diminished terms and conditions of employment compared to the ones they currently enjoy was understandable – after taking into account all the circumstances Commission found it was appropriate to terminate the Agreement – termination will take effect on and from 30 January 2017. Loy Yang Power Enterprise Agreement 2012
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