Reasonableness of Prosegur's JobKeeper directions

In brief 2 min read

A Full Bench of the Fair Work Commission (the FWC) has found that it was not reasonable for security and cash management company Prosegur to offer 25 weekly hours to full-time, part-time and casual employees as a JobKeeper enabling direction. The Full Bench accepted Prosegur's revised JobKeeper enabling direction that reduced the minimum fortnightly hours for full-time employees to 60.

Key takeaways

• JobKeeper enabling directions must be reasonable in that they must not be inequitable, unfair or unjustifiable, and must take into account the circumstances of both the employer and employees.
• In considering the reasonableness of a direction, employers must be conscious of any statutory, award, agreement and contractual entitlements of employees, and consider whether reducing any pre-existing entitlements will disproportionately affect one category of employee over another.

Background

The dispute arose in relation to Prosegur's JobKeeper enabling direction that reduced the working hours of its full-time, part-time and casual armoured vehicle operators to a minimum of 25 hours per week (the direction). In May 2020, the Transport Workers Union of Australia (the TWU) applied to the FWC concerning the direction, arguing that it was unreasonable as it disproportionately affected full-time employees. The TWU also argued that Prosegur was not permitted to unilaterally increase casual employees' hours.

The FWC initially found that the direction was reasonable, and there is no prohibition on a JobKeeper direction that increases the hours of some employees (specifically in this case, casuals).¹ 

The decision

The TWU appealed to the Full Bench, which decided that the direction was unreasonable because it disproportionately impacted full-time employees. Prosegur and the TWU were ordered to confer to attempt to resolve the dispute.²

The Full Bench ultimately accepted the alternative JobKeeper enabling direction to reduce the hours of full-time employees to a minimum of 60 hours per fortnight.³ It was not necessary to put in place JobKeeper enabling directions concerning part-time or casual employees, although Prosegur gave assurances about part-time and casual employees (including that part-time employees would be rostered to work a minimum of 50 hours per fortnight).

The Full Bench also accepted that it would be 'operationally unworkable' to reduce the hours of part-time and casual employees to fewer than 25 weekly hours and to reallocate those employees' hours to full-time employees during ordinary business hours.

Prosegur also agreed to adopt a process to allocate the remaining hours between full-time, part-time and casual employees.