Prosek Security Pty Ltd

[2021] FWCA 5654

[2021] FWCA 5654

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prosek Security Pty Ltd
(AG2021/6800)

PROSEK SECURITY ENTERPRISE AGREEMENT 2021

Security services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 15 SEPTEMBER 2021

Application for approval of the Prosek Security Enterprise Agreement 2021.

[1] Prosek Security Pty Ltd has applied for approval of a single enterprise agreement known as the Prosek Security Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about whether the pre approval requirements were met, whether the Agreement contains the mandatory terms and raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided in relation to these matters.

[3] Regarding the pre approval steps, the relevant employees were notified of the time and place of the vote on the day that was 6 days (and not at least 7 clear days) prior to the commencement of the vote, contrary to the requirement at s.180(3). However all relevant employees cast a valid vote. In the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

(a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
(b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Noting clause 1.4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The employee bargaining representative supported the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[7] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[8] The Agreement was approved on 15 September 2021 and, in accordance with s.54, will operate from 22 September 2021. The nominal expiry date of the Agreement is 22 September 2023.

[9] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

<AE513053  PR733722>

Printed by authority of the Commonwealth Government Printer

 1   [2019] FWCFB 318.

 2   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A