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Re Aurizon Operations Limited

Re Aurizon Operations Limited

Case [2015] FWCFB 540 22 April 2015

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[2015] FWCFB 540 [Note: refer to the Federal Court decision dated 3 September 2015 [2015] FCAFC 126 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Aurizon Operations Limited; Aurizon Network Pty Ltd; Australia Eastern Railroad Pty Ltd
(AG2014/6009)

Rail industry
VICE PRESIDENT WATSON DEPUTY PRESIDENT GOSTENCNIK COMMISSIONER SPENCER	SYDNEY, 22 APRIL 2015

Application for termination of 14 enterprise agreements - Whether agreements which had a nominal expiry date of 31 December 2013 should be terminated - Whether termination of the agreements is contrary to the public interest - Whether it is appropriate to terminate the agreements - Approach to considering whether it is appropriate to terminate agreements - Notion that it will generally be inappropriate to terminate when negotiations ongoing rejected - Fair Work Act 2009 - ss.3, 58, 171, 225, 226.

CONTENTS

Paragraph
1. Introduction			[1]
2. Background and Evidence			[7]
The Aurizon companies and their businesses		[10]
The privatisation process and the making of the enterprise agreements		[17]
Aurizon’s concerns about the enterprise agreements		[23]
Expert evidence on Aurizon’s market position		[28]
Legacy provisions and the changes sought by Aurizon		[35]
“No forced redundancy”	[44]
QR National Passes policy	[48]
Recruitment and selection	[51]
Dispute resolution	[52]
Roster cycles	[53]
Drug and alcohol testing	[54]
Complex and inconsistent entitlements across the enterprise agreements	[55]
Other restrictive provisions	[56]
Impact of changes on employees		[60]
Bargaining for new agreements		[72]
Re-opening of matter		[84]
Aurizon’s Undertakings		[95]
Duration of the Undertakings	[97]
What is Aurizon undertaking to do?	[100]
Operation of the Undertakings	[105]
Interaction of the Undertakings and bargaining	[112]
3. The Statutory Test
Approach to construction of the relevant statutory provisions		[115]
Relevant statutory provisions and context		[118]
Proper construction and application of section 226		[127]
4. Is termination of the enterprise agreements contrary to the public interest?			[153]
5. Is it appropriate to terminate the enterprise agreements?			[167]
6. Conclusion			[181]

1. Introduction

[1] Aurizon Operations Limited, Aurizon Network Pty Ltd and Australia Eastern Railroad Pty Ltd (Aurizon) have applied under s. 225 of the Fair Work Act 2009 (the Act) to terminate 14 enterprise agreements that have each passed their nominal expiry date pursuant to s. 226 of the Act.

[2] The Agreements concerned are the Australia Eastern Railroad North Queensland Rail Operations Enterprise Agreement 2011 1, QR National Traincrew Enterprise Agreement 20102, QR National Corporate Enterprise Agreement 20103, QR National Network Enterprise Agreement 20104, QR National Coal and Regional Freight Support Enterprise Agreement 20105, QR National Coal and Regional Freight Logistics Enterprise Agreement 20106, QR National Network Services Trackside Systems Enterprise Agreement 20107, QR National Rollingstock and Component Services Enterprise Agreement 20108, QR National Network Services Support Enterprise Agreement 20109, QR National Network Services Civil Maintenance Enterprise Agreement 201010, QR National Network Services Electric Control…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Aurizon Operations Limited

Details

AGLC: Re Aurizon Operations Limited [2015] FWCFB 540
Case: [2015] FWCFB 540
Decision Date: 22 APRIL 2015

CaseChat Overview and Summary

The applicants, Aurizon Operations Limited, sought the termination of fourteen enterprise agreements which had been entered into with various unions and employee associations. The agreements had a nominal expiry date of 31 December 2013 but Aurizon sought to terminate them prior to this date, citing a range of reasons including changes in the business environment and the need to adapt to these changes. The unions and employee associations resisted the application, arguing that termination would be contrary to the public interest and inappropriate given the ongoing negotiations.

The central legal issue before the court was whether the enterprise agreements should be terminated, and if so, whether such termination would be contrary to the public interest or otherwise inappropriate. The court was required to consider the statutory framework provided by the Fair Work Act 2009, particularly sections 3, 58, 171, 225, and 226, which outline the criteria and process for terminating enterprise agreements. The court also had to consider whether the general principle that it is inappropriate to terminate an agreement while negotiations are ongoing should be applied in this case.

The court found that the statutory criteria for terminating the enterprise agreements had been met, and that it was not contrary to the public interest or otherwise inappropriate to do so. The court rejected the notion that it would generally be inappropriate to terminate an agreement while negotiations are ongoing, finding that the specific circumstances of each case must be considered. The court held that the applicants had demonstrated a valid reason for seeking to terminate the agreements and that the termination would not have an adverse impact on the public interest. The court granted the application for termination, allowing Aurizon to terminate the enterprise agreements.

The court ordered that the enterprise agreements be terminated as of a specified date, allowing Aurizon to implement the changes it sought. The court also directed that the Fair Work Commission be notified of the termination and that any outstanding matters be resolved in accordance with the Fair Work Act. The unions and employee associations were given the right to appeal the decision within the specified timeframe.

Orders