When an application for termination is made, Article 226 of the Act stipulates that the Commission must terminate the contract if: of course, entry into an ea may sometimes be required by a principal contractor before awarding a contract for the execution of work, especially on large construction sites. This type of application is as controversial as “settlement agreements” with a union, but which are not approved by the FWC. A number of FWC decisions now show that employers have increasingly succeeded in influencing this status quo by approaching the FWC to terminate the expired contract. Perhaps inspired by this trend, a request from employees to achieve a similar result and terminate a long-expired Coles enterprise agreement is currently pending before the FWC. The old EAs can be terminated on request from the FWC, with the agreement of the employer and employees, or at the employer`s sole request. In the past, it was difficult to get the agreement of the FWC to lay off a former EA without the consent of the workers. Under the Fair Work Act, the FWK must consider the public interest in review if a contract is to be terminated. The FWC has a wide discretion to examine both the objectives of the legislation and, importantly, the impact that redundancy will have on employers and workers and their ability to negotiate effectively. Given the views expressed to Aurizon, Griffin Coal and Murdoch, it is instructive that good faith negotiations are an essential part of any request to terminate an existing agreement.
It is interesting to note that in this case, the employer had accepted a clause in the enterprise agreement that, if the employer wished to terminate the agreement, it would maintain the essential conditions established until a replacement agreement was replaced. This is what came into play when the FWC reviewed the termination application and AGL had to respect the undertaking. In the first case, the employer proposed the obligation to maintain the terms for three months after the end of the contract. This was a subject that was at the centre of the complaint and Loy Yang proposed at that time a commitment of up to three years, which was essential to Full Bench`s decision. If an enterprise agreement has exceeded its nominal expiry date, it will remain operational unless it is terminated or replaced. However, anyone covered by the agreement can ask the Fair Work Commission (FWC) to terminate it. Without these three elements, we advise that any attempt to terminate an agreement is probably not at stake. If a redundancy by agreement is an option, workers should participate in a formal vote and, with a majority, an enterprise agreement may be cancelled.