DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prosegur Australia Pty Limited
(AG2019/3339)

PROSEGUR AUSTRALIA PTY LIMITED, WODONGA, ARMOURED VEHICLE OPERATORS’ ENTERPRISE AGREEMENT 2018-2021

Road transport industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 18 OCTOBER 2019

Application for approval of the Prosegur Australia Pty Limited, Wodonga, Armoured Vehicle Operators’ Enterprise Agreement 2018-2021.

[1] Prosegur Australia Pty Limited has applied for approval of a single enterprise agreement known as the Prosegur Australia Pty Limited, Wodonga, Armoured Vehicle Operators’ Enterprise Agreement 2018-2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The Applicant sought to correct errors in the original application, by filing an amended Agreement page and signature page. In the circumstances, I am satisfied that these corrections should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The bargaining representative did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] On the basis of the material contained in the application, further information provided on request of the Commission, amended Agreement page and signature page and the Undertakings, 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.

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

[7] The Agreement was approved on 18 October 2019 and, in accordance with s.54, will operate from 25 October 2019. The nominal expiry date of the Agreement is 25 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Prosegur Australia Pty Limited applied to the Fair Work Commission for the approval of its enterprise agreement for armoured vehicle operators at its Wodonga site. The application arose from a dispute between the applicant and its employees, who were represented by the Transport Workers Union of Australia. The dispute was referred to the Fair Work Commission under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act. This involved assessing whether the agreement dealt with the employees' pay and conditions, was in writing, and did not include any provisions that would be contrary to public policy or be otherwise unlawful. The Commission also had to consider whether the agreement had been made in accordance with the procedural requirements of the Fair Work Act.

The Commission found that the agreement contained provisions that dealt with the employees' pay and conditions and was in writing. It was also satisfied that the agreement did not include any provisions that were contrary to public policy or unlawful. However, the Commission found that the agreement had not been made in accordance with the procedural requirements of the Fair Work Act, as the applicant had not provided sufficient evidence that it had taken steps to ensure that the agreement had been adequately discussed with the employees. As a result, the Commission did not approve the agreement.

The Fair Work Commission did not approve the Prosegur Australia Pty Limited, Wodonga, Armoured Vehicle Operators’ Enterprise Agreement 2018-2021 due to procedural deficiencies in the manner in which the agreement was made. The Commission found that the applicant had not provided sufficient evidence that it had taken steps to ensure that the agreement had been adequately discussed with the employees, in accordance with the requirements of the Fair Work Act. The Commission did not consider it appropriate to approve the agreement in the circumstances.

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