Prosegur Australia Pty Limited

[2016] FWCA 7577

[2016] FWCA 7577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Prosegur Australia Pty Limited
(AG2016/4769)

PROSEGUR AUSTRALIA PTY LIMITED, TOWNSVILLE DEPOT ARMOURED VEHICLE OPERATORS', ENTERPRISE AGREEMENT, 2015-2018

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 4 NOVEMBER 2016

Application for approval of the Prosegur Australia Pty Limited, Townsville Depot Armoured Vehicle Operators', Enterprise Agreement 2015 - 2018

[1] An application has been made by Prosegur Australia Pty Limited (the applicant) for the approval of an enterprise agreement known as the Prosegur Australia Pty Limited, Townsville Depot Armoured Vehicle Operators', Enterprise Agreement 2015 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers all employees in the Townsville Depot that are employed as Armoured Vehicle Operators. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[3] The Transport Workers’ Union of Australia (TWU) was an employee organisation involved in the agreement making process as a bargaining representative. The TWU has filed a statutory declaration (F18) stating that it supports the approval of the Agreement subject to any undertakings required to rectify the TWU’s concerns relating to:

● Cashing out of annual leave;

● Shiftworkers;

● Job search leave;

● The better off overall test (BOOT).

[4] In addition to the concerns identified by the TWU the Commission wrote to the applicant seeking a response or undertakings in relation to a number of concerns it identified. Those concerns relate to:

● The casual regional guard classification;

● The definition of “afternoon shift”;

● Genuine agreement;

● The BOOT.

The TWU Concerns

[5] In its F18 the TWU advanced the concerns identified above. On its own initiative the applicant has provided undertakings in relation to those concerns, the effect of which are outlined below.

Annual leave cash out

[6] The TWU in its F18 stated that cl. 47.1 of the Agreement, providing that annual leave would be cashed out at employees’ base rate of pay, is detrimental when compared with the National Employment Standards (NES) which requires annual leave which is cashed out to be paid at the rate that would be paid if the leave was being taken.

Shiftworkers

[7] The TWU advanced the issue that the definition of a shiftworker under cl.46 of the Agreement is inconsistent with the definition of a shiftworker in the Transport (Cash in Transit) Award 2010 (the Award), the effect being that employees who undertake shiftwork would be entitled to an additional week of annual leave under the Award, but not under the Agreement.

Job search leave

[8] The TWU contended that the Agreement offered no provision for paid job search leave in circumstances of termination and redundancy.

[9] The applicant has undertaken that in circumstances of redundancy an employee will be entitled to paid job search leave in accordance with clause 13.4 of the Award. The applicant has also undertaken that in circumstances of termination where an employee is working through their notice period, that employee will be entitled to paid job search leave in conformity with clause 12.3 of the Award.

The Commission concerns

Casual regional guard classification

[10] The Commission wrote to the applicant noting that the casual regional guard classification does not appear to align with the classifications in the Award. The applicant was requested to identify the relevant classification under the Award or the relevant comparator Award so that the Commission could undertake a BOOT analysis on this classification.

[11] The applicant wrote to the Commission advising that the classification was a legacy of a previous agreement and is no longer valid. The applicant provided an undertaking at the request of the Commission, that the classification is not applicable under the Agreement.

Afternoon shift

[12] The Commission wrote to the applicant noting that the “afternoon shift” under the Agreement does not align with the definition under the Award and appears to overlap with the night shift definition. The Commission was concerned that employees may be entitled to the afternoon shift penalty under the Award but not under the Agreement and requested that the applicant clarify the definition of afternoon shift at clause 40.1.2 and whether it should read ‘12am’.

[13] In response, the applicant informed the Commission that a typographical error had been made and that clause 40.1.2 should rather read ‘12pm’. An undertaking to this effect has been provided.

Genuine Agreement

[14] The Commission noted that clauses 13.1 and 13.2 of the Agreement potentially incorporate policies and procedures into the Agreement, and sought to know whether employees were provided with or had access to these materials and the reasonable steps (if any) that were taken to explain to employees that if policies and procedures are incorporated into the Agreement, a change to them may indirectly be a variation to the Agreement.

[15] In response, the applicant informed the Commission that the policies and procedures referred to in 13.1 and 13.2 of the Agreement, which are relevant to the Armoured Vehicle Operator’s role, and their employment within Prosegur, are conveyed to the employee during initial induction. They are also periodically discussed with employees during “toolbox” information sessions. These policies and procedures are also available on Prosegur’s intranet but are not specifically incorporated into the Agreement.  The applicant assured the Commission that policies and procedures may be altered from time to time, as required, without variation to the Agreement.

BOOT

[16] In its correspondence to the applicant, the Commission noted that the Agreement contains a number of provisions that might leave some employees worse off under the Agreement than under the Transport (Cash in Transit) Award 2010, being the relevant modern award for the purpose of the better off overall test.

[17] The Commission’s analysis suggested that, while the base rates of pay under the Agreement are higher than those under the Award, rates of pay may not be high enough to compensate employees for the reductions under the Agreement, including:

● Reduction of the Mobile Cash Unit (MCU) allowance;
● Reduction in overtime entitlement;
● The different span of ordinary hours under the Agreement.

[18] It was also noted by the Commission that the position of employees could be further worsened by other reductions including the absence of some Award allowances and reduced public holiday entitlements.

[19] The Commission requested the applicant to address these concerns by way of a response or undertakings.

[20] In its response the applicant advised the Commission that the Townsville Depot does not perform an MCU run, so the allowance is not applicable to its employees. However, its employees are entitled to a Gold Handling allowance which would be payable to each employee at least 2-3 times per week. The applicant provided calculations illustrating how the provision of the gold handling allowance demonstrated that employees would be better off. The applicant assured the Commission that the gold handling allowance was the main change proposed by the Agreement, which the majority of employees voted for.

[21] The Commission and the TWU both noted to the applicant that the gold handling allowance is a ‘contingent’ rather than a guaranteed payment to employees, and as such could not be sufficient to cure deficiencies in the BOOT.

[22] In response, the applicant has provided an undertaking that in the event that the gold handling function is not performed in any given week, the gold handling allowance will continue to be paid to employees.

Conclusion

[23] Taking into account the higher rates of pay and the undertakings I am satisfied that the Agreement results in employees being better off under the Agreement.

Undertakings

[24] The applicant has provided an undertaking that employees will be paid the same amount for annual leave cashed out as they would if the annual leave was being taken.

[25] The applicant has undertaken that sub-clause 46.1.3(i) and (ii) will not be applied as part of the shiftworker definition under the Agreement. The applicant also provided, on its own initiative, undertakings which recognise the casual conversion clause within the Award.

[26] The undertakings are taken to be a term of the Agreement and a copy is attached and marked Annexure A. A copy of the undertakings was provided to the TWU and the TWU indicated by email that it consented to the undertakings. The undertakings are not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertakings should be brought to the attention of the employees covered by the Agreement by the applicant.

[27] The TWU has stated that it wishes to be covered by the Agreement, and in accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[28] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[29] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 4 November 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE421800  PR586660>

Annexure A