As you may recall, last year in the Aurizon case the Fair Work Commission overthrew its previous orthodoxy that enterprise agreements were essentially very difficult to terminate in contested applications because the objects of the Fair Work Act almost always made it contrary to the public interest to do so. While at the time many tried to point to the unique facts of the case to say why future lessons couldn’t be drawn from the Aurizon case, the shift in underlying principle absolutely said, and continues to say, otherwise.
Since then, over the last 12 months we have seen that first crack spider and snake its way all across the dam wall, with all manner of companies seeking to take their destinies into their own hands to terminate old EBAs which were still stifling their businesses. To that end, if you ever needed a case to show how even in contested applications poor Hodor has now been finally swept away(!), have a look at this absolute gem of a decision by Commissioner Cloghan in Griffin Coal where terms and conditions will now be physically reduced with the termination of the EBA: https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCA2312.htm.
It is absolutely worth a read from end to end – but I really do only need to give you one short quote to give you a flavour of it if you were in any doubt – “[171]…I am left with the observation that unproductive, inefficient, inflexible and unprofitable businesses do not remain in existence as some sort of societal right”!!
While there may still be a whole heap of HR reasons why you may or may not want to pursue a similar approach, it seems to us that it is actually only now more than ever that to just keep taking control of our own destinies is the only answer!
