In May 2014, negotiations stalled. Aurizon requested the termination of all 14 enterprise agreements concluded with it (although it eventually followed only 12 of them, both of which were replaced shortly). Over the past two years, a number of important decisions have been taken by employers to successfully terminate their enterprise agreements. These include Aurizon Operations Limited in 2015, followed by Griffin Coal Mining Company Pty Ltd, Peabody Energy Australia PCI Mine Management Pty Ltd and AGL Loy Yang Pty Ltd. But every year, on average, 17,000 enterprise agreements are approved by the Commission. The handful of successful applications cannot therefore be invoked as a seismic shift in the way employers generally approach enterprise bargaining. To this end, the majority of the EA provides that the parties to the agreement must engage in discussions to renegotiate the EA within a specified period, either before or after the nominal expiry date, in order to replace the agreement. But if this is not the case or if there is no agreement, the EA can only be terminated in two ways, either by the agreement of the parties or by the request to the Fair Work Commission. A termination by agreement can only take place if the parties actually agree. In practice, this is unlikely to happen naturally if a party wishes to retain certain rights that it does not wish to give up or give up certain benefits that it finds attractive. In any event, if an agreement is reached, workers must vote in favour of repealing the EA and ask the Fair Work Commission to terminate the agreement within 14 days of the date of the vote in favour. In Gangell/Lobethal Abattoirs Pty Ltd T/A Thomas Foods International (2018), an FWC staff member requested the termination of a 2008 transitional conventional instrument (considered an enterprise agreement under transitional laws). The FWC delayed the decision on the application by two months to allow both the resumption of employment negotiations and conciliation by the FWC.
If an expired enterprise contract is terminated, employee terms and conditions may be returned to the underlying modern premium. This has the potential to have a dramatic impact on staff and can be, from a strategic point of view, a compelling opportunity for change. This could be a significant “game change” for workers or employers. In the Currently pending Coles notification, it is a worker who claims that a return to the modern arbitration award would be in the public interest (while in the cases below, the employer stated that there was a case to remove the restrictive conditions of the relevant enterprise agreement).