Application by Prosegur Australia Pty Limited

[2021] FWCA 6515

[2021] FWCA 6515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Application by Prosegur Australia Pty Limited
(AG2021/7965)

Clerical industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 2 NOVEMBER 2021

Application for termination of the Prosegur Australia Pty Limited Beresfield Cash Processing Enterprise Agreement 2019-2020

[1] By an application dated 18 October 2021, Prosegur Australia Pty Ltd (Applicant) applied to the Fair Work Commission (Commission) to terminate the Prosegur Australia Pty Limited Beresfield Cash Processing Enterprise Agreement 2019-2020 (Agreement) under s 222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 20 December 2020.

[2] Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a Statutory Declaration made by Mr Gavin Lynch, Workplace Relations Manager of the Applicant, on 19 October 2021. Mr Lynch declared, amongst other things, that 12 of the 23 employees covered by the Agreement voted to terminate the Agreement.

[4] On 22 October 2021, I directed that:

1. By 4pm on 26 October 2021, Prosegur must provide to each employee who is covered by the Agreement:

a. a copy of Prosegur’s application to terminate the Agreement, together with the documents filed by Prosegur in the Fair Work Commission in support of its application to terminate the Agreement; and

b. a copy of this email.

2. Any employee of Prosegur who wishes to raise any concerns in relation to Prosegur’s application to terminate the Agreement must send an email to [email protected] setting out their concerns by 4pm on 1 November 2021.

3. By 4pm on 1 November 2021, the Australian Municipal, Administrative, Clerical and Services Union must file and serve any submissions it wishes to rely on in relation to Prosegur’s application to terminate the Agreement.”

[5] On 26 October 2021, the Applicant informed the Commission, in writing, that it had complied with direction 1 above.

[6] On 27 October 2021, the Australian Municipal, Administrative, Clerical and Services Union informed the Commission that it did not intend to file any submissions in relation to the Applicant’s application to terminate the Agreement.

[7] No submissions, statements or documents were filed by or on behalf of any employee in opposition to the application to terminate the Agreement.

[8] Based on the material that is before the Commission, including the statutory declaration made by Mr Lynch on 19 October 2021, I am satisfied that the requirements of s 223 of the Act have been met, including that I consider it is appropriate to approve the termination of the Agreement in circumstances where employees will be covered by the Clerks – Private Sector Award 2020 and will be entitled to the benefits promised to them by the Applicant after the termination of the Agreement. Accordingly, I approve the termination of the Agreement.

[9] In accordance with s 224 of the Act, the termination of the Agreement will come into effect at 5:00pm on 5 November 2021. An order [PR735433] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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