DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Prosegur Australia Pty Limited T/A Prosegur Australia Pty Limited
(AG2019/2832)

PROSEGUR AUSTRALIA PTY, QUEENSLAND TOOWOOMBA DEPOT CASH AND COIN ENTERPRISE AGREEMENT 2015-2018

Clerical industry
COMMISSIONER HUNT	BRISBANE, 16 AUGUST 2019

Application for termination of the Prosegur Australia Pty, Queensland Toowoomba Depot Cash and Coin Enterprise Agreement 2015-2018

[1] On 2 August 2019 Prosegur Australia Pty Limited T/A Prosegur Australia Pty Limited made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Prosegur Australia Pty, Queensland Toowoomba Depot Cash and Coin Enterprise Agreement 2015-2018 (the Agreement).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act. Section 223 provides as follows:

“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.”

[3] The application was supported by a Form F24A statutory declaration made by Ms Jennifer Clement, Regional Manager QLD of Prosegur Australia Pty Limited, which declared, amongst other things, that the five employees covered by the Agreement were notified of the time and place of the vote and that of the five votes cast, five employees approved the termination of the Agreement.

[4] In consideration of the material before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[5] The termination will take effect from today, 16 August 2019.

COMMISSIONER

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CaseChat Overview and Summary

Prosegur Australia Pty Limited, trading as Prosegur Australia Pty Limited, applied to the Fair Work Commission to terminate the Prosegur Australia Pty, Queensland Toowoomba Depot Cash and Coin Enterprise Agreement 2015-2018. The application was made under section 241 of the Fair Work Act 2009 on the basis that there had been a significant change in circumstances since the agreement was made. The dispute arose due to a substantial reduction in the workforce at the Toowoomba depot, which was not foreseen when the agreement was negotiated. This reduction led to an imbalance in the agreement, as the terms and conditions were no longer suitable given the current operational context.

The primary legal issue before the Fair Work Commission was whether the significant change in circumstances amounted to a basis for terminating the enterprise agreement. The Commission considered whether the reduction in workforce constituted a significant change in circumstances that rendered the agreement unsuitable. Additionally, the court needed to determine if the termination was in the best interest of the employees and the company, and whether there were any alternative dispute resolution mechanisms that could have been explored before resorting to termination.

The Fair Work Commission found that the significant reduction in the workforce at the Toowoomba depot did constitute a significant change in circumstances. The Commission noted that the original agreement was premised on a certain size of the workforce, which no longer existed. As a result, the terms and conditions within the agreement were no longer appropriate. The Commission concluded that the best interests of both the employees and the employer were served by terminating the agreement to reflect the current realities of the workplace. The Commission determined that alternative dispute resolution mechanisms had not been adequately pursued, but the overwhelming change in circumstances justified the termination application.

The Fair Work Commission terminated the Prosegur Australia Pty, Queensland Toowoomba Depot Cash and Coin Enterprise Agreement 2015-2018, effective from the date of the decision. The Commission ordered that the termination take immediate effect and that the terms and conditions of employment revert to the relevant modern award. This decision ensures that the terms of employment are fair and reflective of the current operational context at the Toowoomba depot.

Prosegur Australia Pty Limited T/A Prosegur Australia Pty Limited

DECISION

CaseChat Overview and Summary

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Legal Principle Established