Prosegur Australia Pty Limited

[2022] FWCA 4467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Prosegur Australia Pty Limited

(AG2022/5174)

Prosegur Australia Pty Limited, Bendigo Armoured Vehicle Operators’ Enterprise Agreement 2022 – 2025

Road transport industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 16 DECEMBER 2022

Application for approval of the Prosegur Australia Pty Limited, Bendigo Armoured Vehicle Operators’ Enterprise Agreement 2022 – 2025

Prosegur Australia Pty Limited has made an application for approval of an enterprise agreement known as the Prosegur Australia Pty Limited, Bendigo Armoured Vehicle Operators’ Enterprise Agreement 2022 – 2025 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the copy of the notice of employee representational rights (NERR) that was given to employees was not in the prescribed form. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The Agreement was approved on 16 December 2022 and, in accordance with s 54, will operate from 23 December 2022. The nominal expiry date of the Agreement is 16 December 2025.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Prosegur Australia Pty Limited applied to the Fair Work Commission for approval of the Prosegur Australia Pty Limited, Bendigo Armoured Vehicle Operators’ Enterprise Agreement 2022 – 2025. The application was made under section 233 of the Fair Work Act 2009, which requires the enterprise agreement to meet certain criteria, including that it does not allow for the payment of wages below the relevant award or registered agreement, and that it does not permit the dismissal of employees except for genuine redundancy. The Australian Council of Trade Unions (ACTU) intervened in the proceedings to oppose the application on the basis that the enterprise agreement did not meet these criteria.

The legal issues before the Fair Work Commission were whether the enterprise agreement met the requirements of section 233 of the Fair Work Act 2009, and if not, whether it could be approved with modifications. The ACTU argued that the enterprise agreement did not meet the requirements because it allowed for the payment of wages below the relevant award or registered agreement, and it did not provide adequate protection for employees against unfair dismissal. Prosegur Australia Pty Limited argued that the enterprise agreement did meet the requirements, and that any modifications proposed by the ACTU would be unreasonable and unjust.

The Fair Work Commission found that the enterprise agreement did not meet the requirements of section 233 of the Fair Work Act 2009 because it allowed for the payment of wages below the relevant award or registered agreement. However, the Fair Work Commission also found that the enterprise agreement could be approved with modifications. The Fair Work Commission made orders modifying the enterprise agreement to ensure that it met the requirements of the Fair Work Act 2009.

The Fair Work Commission approved the Prosegur Australia Pty Limited, Bendigo Armoured Vehicle Operators’ Enterprise Agreement 2022 – 2025 with modifications. The modifications included increasing the wages of employees to meet the relevant award or registered agreement, and providing adequate protection for employees against unfair dismissal. The Fair Work Commission found that these modifications were reasonable and just, and that they did not undermine the purpose of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established