Prosegur Australia Pty Ltd

[2019] FWCA 6599

[2019] FWCA 6599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Prosegur Australia Pty Ltd
(AG2019/3226)

CHUBB SECURITY SERVICES LTD, SOUTH AUSTRALIAN AND NORTHERN TERRITORY CASHROOM AGREEMENT 2013-2016

Clerical industry
COMMISSIONER HAMPTON	ADELAIDE, 23 SEPTEMBER 2019

Application for termination of the Chubb Security Services Ltd, South Australian and Northern Territory Cashroom Agreement 2013-2016.

[1] This decision concerns an application by Prosegur Australia Pty Ltd (Prosegur) pursuant to s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Chubb Security Services Ltd, South Australian and Northern Territory Cashroom Agreement 2013-2016 (the Agreement). The Agreement was originally approved by the Commission in December 2013, 1 with the Agreement commencing operation on 31 December 2013. The Agreement’s nominal expiry date was 31 December 2016. There is no employee organisation covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 23 September 2019. During that hearing I expressed my intention to terminate the Agreement with immediate effect and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The Application was accompanied by a Statutory Declaration of Mr James Skuse, Area Manager - Western, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included considerations to the effect of the following:

•  The Agreement has passed its nominal expiry date;

•  The Clerks Award 2010 (the Award) provides more favourable pay and conditions than the Agreement;

•  Prosegur employees covered by the Agreement voted on 20 August 2019 to cancel the Agreement and be covered by the Award;

•  It would not be contrary to the public interest for the Agreement to be terminated and for the Award to apply to the employees and Prosegur.

[5] Given the circumstances, Prosegur is entitled to apply for the termination of the Agreement pursuant to s.225 of the FW Act.

[6] The Commission issued directions and a notice of listing on 19 September 2019. The directions included the requirement for Prosegur to provide a copy of the notice of listing and directions to all employees covered by the Agreement. The directions also explained the nature of the application and invited employees to express a view about the matter including by raising any concerns directly with the Commission.

[7] The Commission did not receive any communication from any employee covered by the Agreement expressing concerns or otherwise wishing to be heard in relation to the application. Given this fact, and the evidence provided by Mr Skuse, I am satisfied that the majority of employees support the application.

[8] During the hearing of this matter, Mr Skuse and Mr Lynch, National Workplace Relations Manager of Prosegur, confirmed the grounds and indicated that Prosegur had, in effect, been applying the more beneficial conditions of the relevant modern award (as a minimum) after the Agreement’s nominal expiry date. In these circumstances, it was put that the Agreement has little work to do at present.

[9] I accept that a valid application has been made. Prosegur 2 is eligible to apply for the Agreement’s termination and has done so after its nominal expiry date. Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer and the employees. It is evident that the Agreement has little work to do, is now inferior to the Award in many respects, and that the parties have been applying the more beneficial terms of the Award for some time. It is in the interests of both parties, and not contrary to the public interest, that the Award formally apply more generally within this workplace to the relevant employees. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[10] Given this determination, the termination date is a discretionary matter for the Commission under s.227 of the FW Act. As the more beneficial terms of the Award are already applying in the workplace, there is little practical impact of the Agreement’s termination. I see no reason why the Agreement should not be terminated with immediate effect, noting that this has the support of the parties.

[11] The Agreement is terminated and the termination will take effect on and from 11:59 pm on 23 September 2019.

COMMISSIONER

 1   [2013] FWCA 10132.

 2   Prosegur is the successor business to Chubb Security Services Ltd and is covered by the Agreement.

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