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

Printed by authority of the Commonwealth Government Printer

Annexure A

Prosegur Australia Pty Limited, an armoured vehicle operator, sought approval of its proposed enterprise agreement for the period 2019 to 2021. The application was brought before the Fair Work Commission, the relevant body to consider such agreements under Australian labour law. The dispute centred on whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement complied with the statutory requirements set out in the Fair Work Act. This included determining whether the agreement had been made in good faith, and if it provided for the proper operation of the enterprise. Additionally, the Commission needed to consider if the agreement appropriately balanced the interests of both employers and employees, and whether it had been fairly and properly negotiated.

The Fair Work Commission found that the proposed agreement did indeed comply with the statutory criteria. It was satisfied that the agreement had been made in good faith and that it appropriately balanced the interests of the parties. The Commission noted that the agreement provided for the proper operation of the enterprise and that it had been negotiated fairly. The Commission approved the Prosegur Australia Pty Limited, Clayton, Armoured Vehicle Operators' Enterprise Agreement 2019-2021, finding it met all the necessary legal requirements.

The final orders of the Commission were that the proposed enterprise agreement be approved, effective from the date of the decision. The approved agreement would now be binding on the parties involved and would govern the employment conditions of Prosegur Australia Pty Limited's armoured vehicle operators for the specified period.

Prosegur Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established