Prosegur Australia Pty Limited

[2019] FWCA 7950

[2019] FWCA 7950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 222—Enterprise agreement

Prosegur Australia Pty Limited
(AG2019/4399)

PROSEGUR AUSTRALIA PTY LTD COFFS HARBOUR CASH PROCESSING ENTERPRISE AGREEMENT 2017 -2019

Clerical industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 NOVEMBER 2019

Application for termination of the Prosegur Australia Pty Ltd Coffs Harbour Cash Processing Enterprise Agreement 2017 -2019.

[1] This is an application, filed by Prosegur Ausgralia Pty Ltd pursuant to s 222 of the Fair Work Act 2009 (the ‘Act’), which seeks to terminate the Prosegur Australia Pty Ltd Coffs Harbour Cash Processing Enterprise Agreement 2017 - 2019 [AE429362] (the ‘Agreement’).

[2] The relevant provisions of the Act governing applications of this kind are set out at ss 220-224 as follows:

‘220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.’

[3] In a Statutory Declaration in support of the termination of the Agreement (Form F24A), Ms J Clement, Area Manager - North, explained that the employees were informed of the Company’s intention by way of numerous discussions and meetings held between 22 July 2019 and 1 November 2019. The employees were notified in a written notice on 1 November 2019, that a vote for approval of the termination of the Agreement would be conducted on 11 November 2019. This was also explained to employees during a toolbox meeting on 1 November 2019. I am satisfied that the applicant gave the employees covered by the Agreement a reasonable opportunity to consider whether they supported the termination of the Agreement (s 220(2)). In a secret ballot, all four employees who cast a valid vote agreed to terminate the Agreement, satisfying s 221(1) of the Act. For the sake of completeness, I am satisfied that there are no reasonable grounds for believing that the employees have not agreed to the termination of the Agreement (s 223(c)).

[4] Having taken into account the views of the employees as expressed in the vote, and the views of the applicant, I am satisfied that it is appropriate to approve the termination of the Agreement. I am satisfied that all of the requirements of the Act, in particular, ss 220, 221, 222 and 223, have been met. Accordingly, the Prosegur Australia Pty Ltd Coffs Harbour Cash Processing Enterprise Agreement 2017 – 2019 will be terminated. Pursuant to s 224 of the Act, and by consent, the termination is to take effect on and from 21 November 2019. An order to that effect will accompany the publication of this decision.

DEPUTY PRESIDENT

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<AE429362  PR714496>