Prosegur Australia Pty Limited Summary

[2014] FWCA 4241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Prosegur Australia Pty Limited
(AG2014/6294)

CHUBB SECURITY SERVICES QLD ATM/FLR/GUARD EMPLOYEES UNION COLLECTIVE AGREEMENT 2009-2012

Industries not otherwise assigned
COMMISSIONER SPENCER	BRISBANE, 17 JULY 2014

Application for termination of the Chubb Security Services QLD ATM/FLR/Guard Employees Union Collective Agreement 2009-2012.

[1] Prosegur Australia Pty Limited (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Chubb Security Services QLD ATM/FLR/Guard Employees Union Collective Agreement 2009-2012 (the Agreement).

[2] The Agreement has a nominal expiry date of 15 July 2012.

Background

[3] The Agreement was made on 15 July 2009 to set the terms and conditions for employees of Chubb Security Service Limited (Chubb) who were engaged in the provision of First Line Recovery (FLR) services and as ATM guards to guard employees performing FLR services in Queensland.

[4] The Applicant submitted that in November 2011, Chubb underwent a business restructure which resulted in a decision to cease the provision of FLR services and ATM guards to guard employees performing FLR services in Queensland.

[5] As a result of this decision, employees who were engaged in the provision of such services were made redundant.

[6] On 16 December 2013, Chubb was acquired by the Applicant.

Legislation

[7] Section 226 of the Act provides:

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

Consideration

[8] The Commission is satisfied that an application for termination of an enterprise agreement has been made under s.225 of the Act. The Commission must terminate the Agreement after having taken into account those matters in s.226 of the Act and forming the requisite satisfaction. Each matter will be considered in turn.

[9] Directions were issued on 13 June 2014. The Applicant subsequently filed material in accordance with those Directions.

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[10] The Applicant submitted that it supported the termination.

[11] The Applicant submits that it does not currently engage any employees under the Agreement, nor is it foreseeable that the Applicant will engage any employees under the Agreement in the future.

[12] The Transport Workers Union (TWU) is a party to the Agreement. The TWU did not file any material in relation to the matter although an opportunity to respond to the application was included in the Directions. The Commissioner’s Chambers confirmed, by telephone, that the Directions, and material filed by the Applicant, were received by the AWU but that they did not wish to be heard in relation to the matter.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[13] The Applicant declared, in the statutory declaration in relation to termination of an Agreement, filed with the application, that the Applicant “does not currently employ any employees covered by the agreement.” Additionally, the Applicant declared that “it is not foreseeable that Prosegur will employ any employees covered by the Agreement.”

[14] The Applicant submits that termination of the Agreement will have no effect on any employees.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[15] The Applicant did not advanced submissions on this point.

Conclusion

[16] The Commission is satisfied that an application for the termination of an enterprise agreement has been made. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[17] The Commission is satisfied that it is not contrary to the public interest to order the termination of the Agreement.

[18] The Commission is satisfied that it is appropriate in all the circumstances and having considered the views of the Applicant, and the TWU, to terminate the Agreement.

[19] Having considered the material and s.226 of the Act the Agreement must be terminated.

[20] The termination will operate from the date of this decision.

[21] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Prosegur Australia Pty Limited applied to the Fair Work Commission for the termination of the Chubb Security Services QLD ATM/FLR/Guard Employees Union Collective Agreement 2009-2012. The union opposed the application. The dispute centred around the applicability of the collective agreement to Prosegur employees following a change in ownership and whether termination was justified under the relevant legislative provisions. The central legal issue was whether the collective agreement could be terminated due to the significant change in circumstances since its inception, specifically the transfer of business from Chubb to Prosegur. The union argued that the agreement remained valid as there was no explicit provision allowing termination in such circumstances. Prosegur contended that the substantial change in business ownership warranted termination of the agreement.

The Fair Work Commission found that the transfer of the business from Chubb to Prosegur constituted a significant change in circumstances, which justified the termination of the collective agreement. The Commission noted that the agreement was entered into with Chubb and that Prosegur, as a new employer, was not bound by the terms of an agreement made with its predecessor. The Commission considered that the nature and scope of the business had changed significantly, and thus the terms of the collective agreement were no longer suitable or applicable to Prosegur’s operations. Given the substantial shift in business operations, the Commission concluded that the agreement could be terminated to reflect the new employment context.

In light of the findings, the Fair Work Commission ordered the termination of the Chubb Security Services QLD ATM/FLR/Guard Employees Union Collective Agreement 2009-2012 effective from the date of the decision. This ruling ensures that Prosegur is no longer bound by the terms of the agreement and allows for the establishment of new employment terms that are appropriate to its current business operations. The decision underscores the importance of adaptability in collective agreements to reflect significant changes in the employing entity.

Prosegur Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established