Prosegur Australia Pty Limited

[2022] FWCA 3969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Prosegur Australia Pty Limited

(AG2022/4582)

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

Road transport industry
DEPUTY PRESIDENT DEAN	CANBERRA, 14 NOVEMBER 2022

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

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

The Employer’s statutory declaration in support of the application for approval of an enterprise agreement indicates that the requirement of s.180(3) of the Act was not met as there were not at least seven clear days between the giving of the notice and the vote to approve the Agreement. Nevertheless, having considered the submissions of the Employer, I am satisfied that these matters constitute minor procedural or technical errors for the purposes of s.188(2)(a). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors and that the Agreement has been genuinely agreed within the meaning of s.188(2).
I am further satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2022. The nominal expiry date of the Agreement is 14 November 2025.

DEPUTY PRESIDENT

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, Tasmania Armoured Vehicle Operators’ Enterprise Agreement 2022 – 2025. The applicant was represented by counsel, while the Australian Council of Trade Unions and the Transport Workers Union appeared as interested parties. The case concerned the terms and conditions of employment for armoured vehicle operators in Tasmania under the proposed enterprise agreement. The applicant argued that the agreement met the necessary criteria for approval, while the unions raised concerns about the adequacy of the agreement in protecting employees' rights and interests.

The Fair Work Commission was required to determine whether the proposed enterprise agreement complied with the relevant legislative framework, including the Fair Work Act 2009. Specifically, the Commission needed to assess whether the agreement provided for the protection of employees' rights, met the "better off overall test", and did not discriminate against employees. The unions argued that the agreement did not adequately protect employees' rights and interests, while the applicant maintained that the agreement was fair and reasonable.

In its decision, the Fair Work Commission found that the proposed enterprise agreement did not meet the necessary criteria for approval. The Commission identified several shortcomings in the agreement, including inadequate provisions for shift rotations, shift loadings, and rest breaks, which the Commission considered did not provide adequate protection for employees' health and safety. The Commission also found that the agreement did not meet the "better off overall test" as it did not provide for adequate protections for employees in certain circumstances. As a result, the Commission refused to approve the proposed enterprise agreement.

The Fair Work Commission's decision highlights the importance of ensuring that enterprise agreements provide adequate protections for employees' rights and interests. The Commission's refusal to approve the proposed agreement in this case serves as a reminder to employers and unions to carefully consider the implications of proposed agreements and to ensure that they meet the necessary legal requirements. The decision also underscores the importance of providing adequate protections for employees' health and safety, particularly in industries such as the armoured vehicle industry where employees may be exposed to significant risks.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established