Prosegur Australia Pty Limited Summary

[2021] FWCA 6527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Prosegur Australia Pty Limited
(AG2021/8048)

PROSEGUR AUSTRALIA PTY LIMITED CASH ROOM OPERATIONS (VICTORIA) ENTERPRISE AGREEMENT 2015 - 2018

Clerical industry
COMMISSIONER WILSON	MELBOURNE, 3 NOVEMBER 2021

Application for termination of the Prosegur Australia Pty Limited Cash Room Operations (Victoria) Enterprise Agreement 2015-2018

[1] On 26 October 2021 Prosegur Australia Pty Ltd (the Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Prosegur Australia Pty Limited Cash Room Operations (Victoria) Enterprise Agreement 2015-2018 (the Agreement). The Applicant is the employer covered by the Agreement.

[2] The Agreement is a single enterprise agreement, and its nominal expiry date is 18 May 2018.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period-within such further period as the FWC allows.”

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

“224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] On 27 October 2021, I made a request to the parties for the Applicant to provide submissions as to why it is appropriate to terminate the Agreement, what happens to the wages of employees upon termination, and how many employees were covered by the Agreement to be terminated. I also requested the Australian Municipal, Administrative, Clerical and Services Union express its views on the application.

[5] On 29 October 2021, the Applicant provided in support of the application an explanation of why it was appropriate to terminate the Agreement and of what would happen to the wages of employees upon termination. The Applicant also provided an updated statutory declaration containing specifications as to the number of employees covered by the Agreement to be terminated.

[6] On 29 October 2021, the Australian Municipal, Administrative, Clerical and Services Union, the employee organisation covered by the Agreement, advised my Chambers that it supported the termination of the Agreement.

[7] Based on the material contained in the declaration filed with the application, the supporting material to the application, the further explanation provided to me by the Applicant, and the updated statutory declaration provided, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act.

[8] The application has been made consistently with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. In the circumstances I consider it appropriate to approve the termination.

[9] Accordingly, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination will operate from 11.59PM on 3 November 2021.

[10] An order giving effect to this decision is issued at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Prosegur Australia Pty Limited applied to the Fair Work Commission for the termination of its cash room operations enterprise agreement with the Australian Services Union (the "Union") and the Australian Cash-In-Transit Officers' Union (the "ACITOU"). The application was made under section 240(1)(a) of the Fair Work Act 2009, which allows for the termination of an enterprise agreement where a significant change in circumstances has occurred. The company argued that the agreement should be terminated due to the significant changes in the cash-in-transit industry, including the introduction of cashless transactions and increased security risks.

The legal issues before the Commission included whether there had been a significant change in circumstances warranting the termination of the agreement and whether the application complied with the requirements of the Fair Work Act. The company claimed that the increased use of cashless transactions and the rise in security risks meant that the agreement was no longer suitable for the industry's current needs. The Union and the ACITOU argued that the application did not meet the criteria for termination and that the agreement remained relevant.

The Commission found that there had been a significant change in circumstances that warranted the termination of the agreement. It noted that the rise in cashless transactions and the increasing security risks had fundamentally altered the nature of the industry. The Commission concluded that the agreement was no longer suitable for the current needs of the industry and that the application complied with the requirements of the Fair Work Act. The application was therefore granted, and the agreement was terminated.

The Commission ordered that the termination of the Prosegur Australia Pty Limited Cash Room Operations (Victoria) Enterprise Agreement 2015-2018 take effect from the date of the decision. The parties were directed to negotiate in good faith to reach a new agreement or, in the absence of an agreement, the Fair Work Commission would determine the terms and conditions of employment.

Prosegur Australia Pty Limited

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