Accor Australia and New Zealand Hospitality Pty Ltd T/A Pullman Bunker Bay Resort

[2021] FWCA 5598

[2021] FWCA 5598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Accor Australia and New Zealand Hospitality Pty Ltd T/A Pullman Bunker Bay Resort
(AG2021/7287)

QUAY WEST RESORT BUNKER BAY ENTERPRISE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 14 SEPTEMBER 2021

Application for termination of the Quay West Resort Bunker Bay Enterprise Agreement 2009.

[1] On 6 September 2021, Accor Australia and New Zealand Hospitality Pty Ltd T/A Pullman Bunker Bay Resort (the Applicant) applied under s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Quay West Resort Bunker Bay Enterprise Agreement 2009 1(the Agreement).

[2] The Agreement covers Mirvac Hotels Pty Ltd T/A Quay West Resort Bunker Bay and the employees of that same entity working in hospitality, managerial, beauty and clerical positions. However, while the name of the Applicant differs to that of the employer covered by the Agreement, the Applicant submits that following the acquisition of the Mirvac Hotels and Resort portfolio by the Accor Group, the name Mirvac Hotels Pty Ltd was changed to Accor Australia and New Zealand Hospitality Pty Ltd – albeit there was no change in the legal entity. 2 I am satisfied with that explanation.

[3] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s 222 of the Act. Section 223 of the Act is as follows:

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.

[1] The application was made in the requisite timeframe, 3 and was supported by a declaration (Form F24A) from the Applicant which was accompanied by comprehensive evidence. The declaration set out, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[2] Having considered the material before me, including the application and the aforementioned declaration and accompanying annexures of Mr Leighton Yates, the General Manager of Pullman Bunker Bay Resort, I am satisfied that the requirements of s 223 of the Act have been met. Therefore, in accordance with s 223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[3] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

 1   [2010] FWAA 1073.

 2   ASIC Current Organisation Extract.

 3 Section 222(3) of the Fair Work Act 2009 (Cth).

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