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).

Printed by authority of the Commonwealth Government Printer

Accor Australia and New Zealand Hospitality Pty Ltd, trading as Pullman Bunker Bay Resort, sought the termination of the Quay West Resort Bunker Bay Enterprise Agreement 2009. The application was heard in the Fair Work Commission, where the central dispute centred around the enforceability and applicability of the enterprise agreement in light of changes to the resort's operations. The resort's owner argued that the enterprise agreement had become redundant due to significant operational changes, which included the cessation of certain activities and the introduction of new management practices.

The legal issues before the Commission involved whether the enterprise agreement was still applicable under the changed circumstances, and if so, whether the resort could be compelled to adhere to its terms. The key question was whether the changes to the resort's operations constituted a significant alteration that would warrant the termination of the agreement. Additionally, the Commission had to consider the implications of such a decision on the employees and whether the resort had acted in accordance with the Fair Work Act 2009.

The Commission determined that the resort's operational changes were indeed significant enough to render the enterprise agreement unenforceable. The changes included the cessation of a substantial part of the resort's operations, which led to a significant reduction in the workforce. The Commission concluded that these changes constituted a material alteration in the resort's operations, thereby justifying the termination of the enterprise agreement. The resort's actions were deemed to be in compliance with the Fair Work Act, and the application for termination was granted.

The Fair Work Commission ordered the termination of the Quay West Resort Bunker Bay Enterprise Agreement 2009, effective from the date of the decision. This decision allows the resort to operate under the terms of the applicable modern award, ensuring that the changes in operations are reflected in the employment conditions. The ruling also acknowledges the need to balance the interests of the employer with those of the employees, particularly in circumstances where significant operational changes have occurred.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established