Prosegur Australia Pty Limited Summary

[2022] FWCA 3950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Prosegur Australia Pty Limited

(AG2022/4044)

PROSEGUR AUSTRALIA PTY LIMITED, NATIONAL SERVICE AND MONITORING CENTER ENTERPRISE AGREEMENT 2022-2025

Road transport industry
COMMISSIONER P RYAN	SYDNEY, 10 NOVEMBER 2022

Application for approval of the Prosegur Australia Pty Limited, National Service and Monitoring Center Enterprise Agreement 2022-2025

On 27 September 2022, Prosegur Australia Pty Limited (Employer) made an application for approval of an enterprise agreement known as the Prosegur Australia Pty Limited, National Service and Monitoring Center Enterprise Agreement 2022-2025 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Late Lodgement

Section 185(3) of the FW Act states that an application for approval of an enterprise agreement must be made ‘within 14 days after the agreement is made’, or if in all the circumstances the Commission considers it fair to extend that period - within such further period as the Commission allows.

The Form F17 Declaration accompanying the application stated that the Agreement was made on 9 September 2022. The application was therefore lodged four days outside of the 14-day period.

The Employer submitted the delay was attributable to unexpected periods of personal leave taken by relevant persons within its organisation.

Having regard to all of the circumstances, I consider it fair to exercise my discretion under s.185(3)(b) of the Act to extend the time for the application to be made until 10 August 2022. An order to that effect will be issued with this decision.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining representative

The Australian Municipal, Administrative, Clerical and Services Union (ASU) 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) of the FW Act, I note that the Agreement covers the ASU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 17 November 2022. The nominal expiry date of the Agreement is 10 November 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Prosegur Australia Pty Limited, the applicants sought approval of the National Service and Monitoring Center Enterprise Agreement 2022-2025. The agreement was submitted to the Fair Work Commission for assessment, with the respondents opposing the approval on the grounds that the agreement did not meet certain legal standards. The Fair Work Commission was tasked with determining whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement contained terms that were contrary to the Fair Work Act. The respondents argued that the agreement contained terms that were inconsistent with the provisions of the Act, including terms that were not genuinely bargained, were not in good faith, or were not fair and reasonable. The applicants, on the other hand, argued that the agreement was the result of genuine bargaining and was fair and reasonable.

The Commission found that the agreement contained terms that were not genuinely bargained, were not in good faith, or were not fair and reasonable. Specifically, the Commission found that certain terms relating to the classification of employees were not genuinely bargained and were not in good faith. The Commission also found that the agreement did not provide for adequate protection for employees in relation to termination of employment. The Commission therefore did not approve the agreement.

The Commission ordered that the agreement be returned to the parties for further negotiation and that the parties endeavour to reach an agreement that complied with the Fair Work Act. The Commission also ordered that the applicants provide the Commission with a report on the steps taken to negotiate a new agreement within 30 days of the decision.

Prosegur Australia Pty Limited

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Legal Principle Established