Prosegur Australia Pty Limited T/A Prosegur Australia Pty Limited

[2019] FWCA 4837

[2019] FWCA 4837

FAIR WORK COMMISSION

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
(AG2019/2248)

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

Clerical industry
COMMISSIONER SPENCER	BRISBANE, 11 JULY 2019

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

[1] This decision relates to the application filed by Prosegur Australia Pty Limited T/A Prosegur Australia Pty Limited (the Employer) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Prosegur Australia Pty, Queensland Kawana Depot Cash and Coin Enterprise Agreement 2015-2018 (the Agreement).

Relevant Legislation

[2] Sections 219, 220, 221 and 222 provide as follows:

Subdivision C—Termination of enterprise agreements by employers and employees

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC

(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.

Limitation—greenfields agreement

(3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

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.

[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:

223 When FWA 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, FWA must approve the termination if:

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

(d) FWA 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.

Conclusion

[3] Ms Jennifer Clement, of the Applicant, provided a statutory declaration which outlined the process taken for the employees to approve the termination of the Agreement, relevant to s.220(2)(a). A Memo providing ‘Notice of Ballot’ was provided to the employees on 18 June 2019.

[4] In respect of s.220(2)(b) and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Ms Clement’s evidence was that a toolbox meeting was held on 18 June 2019, where the effects of terminating the Agreement were explained to the employees. Ms Clement also declared that the voting method and date was also explained during the toolbox forum.

[5] This evidence further provided that, of the six employees who were covered by the Agreement, all six cast a valid vote and it was unanimously agreed to terminate the Agreement. This satisfies the Commission that the termination was agreed to by a majority in accordance with s.221(1).

[6] There are no other reasonable grounds for considering that the employees have not agreed to the termination. Upon termination of the Agreement, the employees will be covered by the Clerks – Private Sector Award 2010.

[7] There are no employee organisations covered by the Agreement. The application was made within 14 days after the termination was agreed to. It is considered appropriate to approve the termination of the Agreement.

[8] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this decision.

[9] In accordance with s.224 of the Act, the Decision will come into effect today.

COMMISSIONER

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