понедельник, 27 апреля 2015 г.

Австралия (трудовые отношения). Независимая комиссия по трудовым отношениям Австралии (The Fair Work Commission) вынесла решение, позволяющее компании, осуществляющей железнодорожные перевозки расторгнуть ряд трудовых договоров не выявив в данном расторжении нарушений публичных интересов. Расторжению договоров предшествовали два обстоятельства: а) у компании появился новый собственник; б) переговоры по изменению трудовых договоров в сторону сокращения некоторых прав работников зашли в тупик.

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FWC orders termination of enterprise 

agreements in this remarkable case

Monday, 27th April, 2015, by Loran McDougall
In today's Workplace Bulletin:
  • Case Law: FWC terminates Aurizon enterprise agreements
Dear Reader,
Enterprise bargaining is the process of negotiating the terms and conditions of employment between an employer and its employees.
Although this process is designed to result in an enterprise agreement containing terms and conditions of employment that suit the needs of both the business and its employees, there may come a time when that enterprise agreement is no longer suitable.
An enterprise agreement will continue to operate until it is terminated, varied or replaced.
You may vary an enterprise agreement:
  • by agreement with the employees covered by the agreement; or
  • to remove ambiguity or uncertainty.
You can terminate an enterprise agreement:
  • after the agreement’s nominal expiry date, i.e. the date from which the agreement can be terminated or replaced with another agreement; or
  • prior to the nominal expiry date, if you have the employees’ agreement.
To vary or terminate an agreement in any of these ways requires you to apply to the Fair Work Commission (FWC).
In today’s bulletin, Charles Power looks at a recent case in which an employer applied to the FWC to have its enterprise agreement terminated. The FWC will terminate an agreement if:
  • it is not contrary to the public interest to do so; and
  • it is appropriate, after taking into account all the circumstances, including the views of the parties to the agreement and the likely effect the termination will have on them.
This case will be of particular interest to employers facing disagreements in negotiating productivity improvements and flexibilities through enterprise agreements.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
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Case Law: FWC terminates Aurizon enterprise 


by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In a remarkable decision (Aurizon Operations Limited and others (2015)), the FWC has agreed to terminate 12 enterprise agreements covering rail industry employer Aurizon.

The application to terminate the agreements was opposed by the unions and employees.
The effect of the termination is that employees revert to award and minimum statutory conditions, subject to undertakings the company has given to maintain wages, allowances and other “defined benefits”.
The background
The agreements reached their nominal expiry date but were still in operation, as they had not been replaced, varied or terminated.
Bargaining for replacement agreements had stalled and the company believed that it could not wait for it to restart. It argued that it needed to rid itself of “constraints, restrictions and inefficiencies” or “legacy conditions” imposed on it by the current agreements in relation to rostering, redundancies and relocation, dispute settling provisions and consultation. These included “no forced redundancy” provisions, which were the result of a guarantee given by its previous public-sector owners.
The decision
The FWC noted that the rail freight industry is in a “dynamic state of transition following the privatisation of major employers and the efforts of customers to reduce costs” and that, in this environment, employers had to look for improvements and efficiencies to enhance their competitive position, retain market share and compete more effectively for new market opportunities.
The FWC concluded that it was not contrary to the public interest to terminate the agreements, and ordered that they be terminated with effect 18 May 2015.
The result
The termination of the agreements will:
  • likely improve the company’s bargaining position in negotiating new agreements;
  • allow the company to implement productivity changes before the new agreement is made;
  • force employees to  negotiate flexible work arrangements;
  • require employees to offer productivity-improvement measures to get a wage increase; and
  • likely result in at least 69 employees being immediately retrenched.
The decision is likely to be appealed to the Federal Court.
Charles Power
Charles Power

Employment Law Practical Handbook

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