Prosegur Australia Pty Limited

[2020] FWCA 7

[2020] FWCA 7

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prosegur Australia Pty Limited
(AG2019/3658)

PROSEGUR AUSTRALIA PTY LIMITED, CLAYTON, ARMOURED VEHICLE OPERATORS' ENTERPRISE AGREEMENT 2019-2021

Road transport industry
COMMISSIONER LEE	MELBOURNE, 2 JANUARY 2020

Application for approval of the Prosegur Australia Pty Limited, Clayton, Armoured Vehicle Operators' Enterprise Agreement 2019-2021.

[1] An application has been made for approval of an enterprise agreement known as the Prosegur Australia Pty Limited, Clayton, Armoured Vehicle Operators’ Enterprise Agreement 2019-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Prosegur Australia Pty Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] I note that clause 14 (c) of the Agreement provides that if an employee leaves employment with the employer prior to the expiration of an individual licence which has been paid for by the employer, then a deduction will be made from any monies owing to that employee upon the termination of employment. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 14 (b)(iv) – Hours of Work

•  Appendix 5, clause 2 (c) – Retrenchment Payments

However, noting clause 2 of the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 January 2020. The nominal expiry date of the Agreement is 19 August 2021.

COMMISSIONER

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Annexure A