Prosegur Australia Pty Limited

[2016] FWCA 2218

[2016] FWCA 2218

FAIR WORK COMMISSION

DECISION

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

Prosegur Australia Pty Limited
(AG2016/2428)

PROSEGUR AUSTRALIA PTY LIMITED ACT ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 11 APRIL 2016

Application for approval of the Prosegur Australia Pty Limited ACT Enterprise Agreement 2016

[1] An application has been made by Prosegur Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Prosegur Australia Pty Limited ACT Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers employees engaged by the employer as armoured vehicle operators and cash/coin room employees who are employed at the applicant’s Fyshwick branch. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the operational and geographical distinction of the employees.

[3] The Transport Workers’ Union of Australia (TWU) being a bargaining representative for the Agreement has filed a statutory declaration (F18) in support of the approval of the Agreement.

Notice of Employee Representational Rights (NERR)

[4] The NERR contains the incorrect name of the Agreement; it refers to Prosegur Australia Pty Limited ACT Enterprise Agreement, which omits “2016” from the name of the Agreement.

[5] The applicant advised that omitting the reference to “2016” was a typographical error.

[6] I am satisfied that the NERR meets the requirements under s.174 and that the employees have not been misled in any way.

Consultation term

[7] Section 205(1)(b) of the Act requires a consultation term which allows the representation of employees. The consultation term contained in cl. 42 of the Agreement– Employee Consultation, with regard to representation only refers to the TWU. The Commission was concerned that those employees, whose representative was not the TWU, would not be recognised under the Agreement.

[8] The applicant requested an undertaking be provided to address this issue raised by the Commission.

[9] The applicant was advised that undertakings can only be accepted where the Commission has concerns regarding ss. 186 and 187. The consultation requirements found under s.205 cannot be remedied by undertakings. Accordingly, pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

Better Off Overall Test

[10] The Transport (Cash in transit) Award 2010 and the Clerks Private Sector Award (the Awards) are the relevant reference instruments with respect to the better off overall test (BOOT) as required under s.186 of the Act. The rates of pay under the Agreement are higher than the corresponding minimum rates of pay under the respective Awards.

Approval

[11] Taking into account the higher rates of pay under the Agreement when compared to the corresponding Awards, I am satisfied that the Agreement results in employees being better off under the Agreement.

[12] 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.

[13] The TWU has given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the TWU.

[14] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 18 April 2016. The nominal expiry date of the Agreement is 9 September 2016 1.

DEPUTY PRESIDENT

Annexure A

 1   At the request of the Commission, the applicant has confirmed that the Agreement expires on 9 September 2016.

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