Lots has been said recently in the press about enterprise agreement making and the approval process by the Fair Work Commission (FWC). In short, the numbers of agreements being made is down and approval times are “long”. The graph below, recently cited in an AFR article, demonstrates a possible link between approval times slowing and

A photo by Thomas Kelley. unsplash.com/photos/hHL08lF7IkcThe Aurizon decision handed down on 22 April 2015 and endorsed by a Full Federal Court on 3 September 2015 has created a viable option for employers needing to move away from legacy industrial arrangements that are bad for business.

The Aurizon decision was a watershed ruling because it swept away a longstanding presumption that agreements should not be terminated whilst bargaining negotiations for a new agreement are occurring (see our earlier blogs about this decision here). The mere fact the option exists has given employers more leverage in bargaining, as well as providing an opportunity to change arrangements other than through a union-resisted employee ballot for a new agreement.
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In September 2015, the Building Code 2013 was amended to incorporate mandatory drug and alcohol testing for Commonwealth funded construction projects. From 16 October 2015, head contractors must have a comprehensive fitness for work policy in place to manage alcohol and other drugs which includes mandatory testing.
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Aurizon, previously a government owned entity, operates in the rail industry. The company had been bargaining in relation to numerous enterprise agreements. Part of the company’s bargaining platform was to be relieved of onerous restrictions on management, many of which were legacies of its public sector origins. The changes were resisted and the bargaining became intractable.

In an effort to overcome the legacy arrangements, Aurizon applied to the Fair Work Commission to terminate the agreements.
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The enterprise bargaining process has been criticised for its failure to deliver productivity improvements to business.  Whilst enterprise bargaining is premised on the idea that employers and employees will make enterprise agreements that deliver such benefits, in return for other trade-offs, often the process can be an inflationary one for employers who end up only with an increased cost base.
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Restructuring or re-organising a business is common.  Companies make these changes for a variety of reasons – to change the business model, pursue operational improvements, reduce cost, and/or make optimum use of available resources. It’s also increasingly likely that displaced employees will be given the opportunity to transfer between related group companies.  Employers seeking to rely on the redundancy exemption to the unfair dismissal provisions in the Fair Work Act 2009 (FW Act) will need to consider redeployment options within group companies.
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Since 1 January 2014 employees who have been bullied at work have been able to apply to the Fair Work Commission for a range of remedies. Monetary compensation is not available as a remedy. It has been held that conduct occurring before 1 January 2014, when the laws commenced operation, can be considered in dealing with claims.
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