“I am cautious with the unions` proposal that it would be inappropriate to denounce the agreement because it would allow AGL Loy Yang to avoid the commitment it had previously accepted in Clause 4 of the agreement. This is because it could be concluded that Term 4 is ineffective and should have no weight (see above, item 1.  Finally, I am not satisfied that the company is in a position to consider the conclusion that it is not appropriate to denounce the agreement. “The new enterprise agreement allows for salary increases while providing operational flexibility that is essential to the long-term sustainability of the site as part of the ongoing transformation of the electricity market,” said Andy Vesey, AGL`s Managing Director. In deciding to denounce the agreement, Vice-President Clancy relied heavily on the decision of Aurizon Operations Limited; Aurizon Network Pty Ltd; Australian Eastern Railroad Pty Ltd  FWCFB 540 (Aurizon). It is important that, after Aurizon`s decision, there is “no general presumption” that the continuation of an agreement beyond the nominal expiry date is preferable to the continuation of an agreement and that it is clear that the regime is not intended to ensure that the agreements are maintained “sustainably”. The Fair Work Commission has ordered the termination of an enterprise agreement for employees of the Loy Yang power plant on the condition that the employer meet certain essential conditions for a period of three years, as the conditions following a request to terminate the contract are met. Full Bench focused on the employer`s commitment in Clause 4 of the agreement to maintain certain terms of employment until a new agreement is reached if it were applicable to the termination of the contract. The full bank found, Clause 4, could no longer produce legal effects after the end of the agreement, but considered that it was considered an employer`s representation that could not be ignored in determining whether the termination of the agreement was appropriate (the clause was not adequately weighted, which is an error in the trial decision). However, Full Bench`s concerns were addressed by Loy Yang`s additional commitment to maintain the terms of Clause 4 of the agreement for up to three years after the whistleblowing decision. The Full Bench noted that “the commitment made by AGL Loy Yang in the complaint… compliance with the obligation under Term 4 for as long as anyone could reasonably have been expected to do so.” The full-fledged bank found that the company had the consequences of the error at trial and upheld the decision to terminate the contract. AGL Energy announced that the majority of employees at the Loy Yang A plant and the company`s Victoria mine approved a new enterprise agreement by secret ballot this afternoon.
The agreement is now submitted to the Fair Work Commission for review and final approval, which is expected to arrive in the coming weeks. Loy Yang Power Enterprise Agreement 2012 (agreement) had approximately 578 employees working in both the Loy Yang lignite mine and the Loy Yang A power plant, which supplies about 30% of Victoria`s electricity.