Prosegur Australia Pty Ltd

[2021] FWCA 5018

[2021] FWCA 5018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Prosegur Australia Pty Ltd
(AG2021/5431)

Clerical industry
DEPUTY PRESIDENT BINET	PERTH, 19 AUGUST 2021

Application for termination of the Prosegur Australia Pty Ltd, Western Australia, North Perth & Kalgoorlie, Cash Room Enterprise Agreement, 2014-2017.

[1] On 1 June 2021 Prosegur Australia Pty Ltd (Prosegur) filed an application (Application) pursuant to section 222 of the Fair Work Act 2009 (Cth) (FW Act) for the termination of the Prosegur Australia Pty Ltd, Western Australia, North Perth & Kalgoorlie, Cash Room Enterprise Agreement, 2014-2017 (Agreement).

[2] The Application was supported by a statutory declaration by Mr Gavin Lynch (Lynch Declaration).

[3] The Agreement was approved by Commissioner Cargill pursuant to s 185 of the FW Act, on 15 December 2014 and commenced operation on 22 December 2014.

[4] The Agreement is a single enterprise agreement with a nominal expiry date 30 June2017.

[5] The parties to the Agreement are Prosegur and all employees in North Perth and Kalgoorlie Depots who are employed as Cash Room Operators (Employees).

[6] The Transport Workers Union of Australia (TWU) are covered by the Agreement.

[7] On 14 June 2021, directions were issued to the Parties with respect to the Application (Directions). The Directions required Prosegur to file an outline of submissions in support of the Application and any evidence on which Prosegur sought to rely. The Directions required the TWU to file an outline of submissions in response to the Application and any evidence on which the TWU sought to rely.

[8] The Directions also required Prosegur to provide a copy of the Application, the Lynch Declaration and the Directions to all Employees. The Directions contained an invitation for any Employee who wished to be heard with respect to the Application, to contact the FWC by close of business on Thursday, 15 July 2021. The parties were advised that in the absence of any such contact being made, a conclusion about this Application may be reached on the material before me.

[9] The parties were invited to make oral submissions in relation to the Application. The parties did not seek to be heard and this Application has been determined on the papers.

Background

[10] Prosegur is a cash management provider which partners with Australian banks, retailers and hospitality venues providing a range of cash management solutions such as cash logistics and security. This includes armed uniformed cash-in transit personnel that collect cash directly from premises, ATM service management and automated cash services.

[11] Prosegur had 36 Employees covered by the Agreement as at 1 June 2021.

Relevant Statutory Provisions

[12] Sections 220, 221, 222 and 223 of the FW Act state:

“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

(a) 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.”

“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.”

Consideration

[13] Prosegur submit that s.220(1) of the FW Act has been complied with because Prosegur met with representatives of the Employees throughout the period March 2021 to May 2021 to discuss the proposed termination of the agreement and the differences between the Agreement and the Clerks (Private Sector) Award 2020 (Award).

[14] Prosegur submit that s.220(2)(b) of the FW Act has been complied with because during these meetings the Award and the Agreement were explained in detail with particular attention paid to any differences between the two instruments. This information was relayed back to all Employees following each meeting with the employee representatives. Prosegur say that Employee concerns were identified through the meetings held throughout March 2021 to May 2021 and a document addressing these concerns was developed and distributed to employees prior to the ballot taking place. A copy of these materials were filed by Progesur.

[15] Prosegur submit that s.220(2)(a) of the FW Act has been complied with because on 12 May 2021, Prosegur provided all employees covered by the Agreement a notice of ballot (Notice). The Notice, a copy of which was filed by Bristow, sets out the method, time and place for the vote.

[16] On the evidence before me I am satisfied that the Employees understood the reasons for the Application and had a reasonable opportunity to consider whether they wished to approved the proposed termination of the Agreement.

[17] Prosegur submit that s.221(1) of the FW Act has been complied with because a ballot was held where all Employees were given the opportunity to vote. Of the 36 Employees covered by the Agreement only one Employee chose not to vote, two voted against terminating the Agreement and 33 Employees voted in favour of terminating the Agreement.

[18] I am satisfied that the termination of the Agreement has been agreed to pursuant to section 221(1) of the FW Act, as 33 out of 36 employees voted in favour of terminating the Agreement.

[19] Prosegur is a party to the Agreement I am therefore satisfied that Prosegur have standing to make the Application pursuant to s.222(1).

[20] The Application was accompanied by the Lynch Declaration. I am therefore satisfied, that s.222(2) has been complied with.

[21] The vote occurred on 24 May 2021 and the Application was filed on 1 June 2021. I am therefore satisfied that the Application was made within fourteen days of the vote and that therefore s.222(3) has been complied with.

[22] For the reasons set out above I am satisfied that Prosegur complied with subsection 220(2) of the FW Act and that the termination was agreed in accordance with subsection 221(1) of the FW Act.

[23] On 17 June 2021, Mr Lynch filed a statutory declaration confirming that a copy of the Application, the Lynch Declaration, the submissions filed by Prosegur in support of the Application and the Directions had been provided to all the Employees.

[24] No applications to be heard were received by any Employee on or before close of business on Thursday, 15 July 2021.

[25] On 10 August 2021 in line with the Directions issued to the Parties, the TWU made submissions with respect to the termination of the Agreement. The TWU advised that it does not object to the termination of the Agreement.

[26] There is no evidence before me to suggest that there are reasonable grounds for believing the Employees have not agreed to the termination of the Agreement.

Conclusion

[27] Based on the material that is before me, and in the absence of any request from an employee or the TWU to heard, I am satisfied that Prosegur has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the Employees have not agreed to the termination. I have taken into account the views of the TWU. In these circumstances I must approve the termination of the Agreement.

[28] The termination will come into effect on the date of this decision. An order to this effect will be issued with this Decision.¹

DEPUTY PRESIDENT

1 PR732826.

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