233 Victoria Square Hotel Pty Ltd T/A Hilton Adelaide
[2022] FWC 1364
•31 MAY 2022
| [2022] FWC 1364 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Applications for orders relating to instruments covering new employer and non-transferring employees
233 Victoria Square Hotel Pty Ltd T/A Hilton Adelaide
(AG2022/1575, AG2022/1574)
| Manufacturing and associated industries | |
| COMMISSIONER PLATT | ADELAIDE, 31 MAY 2022 |
Applications for orders relating to instruments covering new employer and non-transferring employees.
On 23 May 2022, 233 Victoria Square Hotel Pty Ltd T/A Hilton Adelaide (the Applicant) filed applications in the Fair Work Commission (the Commission) in respect of the operation of the Hilton Adelaide Engineering Enterprise Agreement 2010 (the Hilton Engineering Agreement) and the Hilton Adelaide Enterprise Agreement 2006 (the Hilton Agreement) (together, the Agreements) to non-transferring employees.
The Hilton Engineering Agreement was approved on 14 October 2010 and has a nominal expiry date of 21 October 2013. The Hilton Agreement was certified on 31 May 2006 and has a nominal expiry date of 30 May 2007. In the absence of an order in the form sought, the non-transferring employees would be covered by either the Manufacturing and Associated Industries and Occupations Award (the Manufacturing Award) or the Hospitality Industry General Award 2010 (the Hospitality Award).
The relevant legislation
Part 2-8 of the Fair Work Act 2009 (Cth) (the Act) describes when a transfer of business occurs and also provides for the transfer of enterprise agreements from one employer to another in a transfer of business.
Section 311(1) of the Act defines “transfer of business” and section 312 defines the types of “transferable instrument” that may transfer from one employer to another. Sections 317 and 319 empower the Commission to make orders in relation to a transfer of business, including orders that a transferable instrument will, or will not, cover the new employer in relation to the non-transferring employee.
Consideration
The Agreements are transferable instruments for the purposes of s.312(1)(a) of the Act.
Since 1994, Sitehost has been the owner of Hilton Adelaide located at 233 Victoria Square, Adelaide (the Hotel). Sitehost owns the Hotel through a management agreement with the global Hilton chain. As part of the agreement, Sitehost generally owns or manages all assets within the Hotel and employs all staff. Two of the directors of Sitehost have incorporated the Applicant in order to purchase the Hotel and as part of this transaction they will continue with the previous agreement in order to trade as a Hilton property. As part of this transaction, the Applicant will purchase or acquire all of Sitehost’s assets that are used as part of the management of the Hotel.
I am satisfied that there will be a transfer of business between Sitehost and the Applicant for the purposes of s.311(1) of the Act as employees of Sitehost will cease to be employed by Sitehost and will be engaged immediately by the Applicant to perform the same work on the same terms and conditions of employment.
On 27 May 2022, I conducted a conference, by telephone, in respect of both applications. Mr Nicholas Linke was granted permission under s.596 of the Act to represent the Applicant at the conference and appeared with Ms Barbara Mula. Ms Louise Dillon represented the United Workers’ Union (UWU). The UWU are entitled to represent employees covered by the Hilton Agreement.
During the conference, the Applicant gave an undertaking that:
· The Hilton Agreement will be read and interpreted in conjunction with the National Employment Standards (NES), and where there is any consistency between the Agreement and the NES and the NES provides a greater benefit, the NES will prevail to the extent of the inconsistency.
· The Hilton Agreement will be read and interpreted such that any reference to an Award is a reference to the Hospitality Award.
· The Applicant will ensure that a copy of these undertakings is made available to all employees covered by the Hilton Agreement, and ensure that a copy of the instrument is attached to any copy of the Hilton Agreement provided to employees or made available in the workplace.
On the basis of the above undertakings provided by the Applicant, the UWU did not object to the application in respect of the Hilton Agreement.
Having considered each of the matters outlined in s.319(3) of the Act and the material that has been filed, I am satisfied that orders pursuant to s.319(1)(b) of the Act should be made in respect of both applications. The orders[1] will be issued concurrently with this decision.
COMMISSIONER
[1] PR742142 and PR742144.
Printed by authority of the Commonwealth Government Printer
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