Accor Australia & New Zealand Hospitality Pty Ltd T/A Pullman Magenta Shores Resort

[2021] FWCA 6929

FAIR WORK COMMISSION

DECISION

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

Accor Australia & New Zealand Hospitality Pty Ltd T/A Pullman Magenta Shores Resort
(AG2021/8119)

QUAY WEST RESORT MAGENTA SHORES EMPLOYEE COLLECTIVE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 1 DECEMBER 2021

Application for termination of the Quay West Resort Magenta Shores Employee Collective Agreement 2009

[1] Accor Australia & New Zealand Hospitality Pty Ltd (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Quay West Resort Magenta Shores Employee Collective Agreement (the Agreement). The Agreement has passed the nominal expiry date of 2014.

[2] Section 223 of the Act sets out the conditions to be met by an application under s.222 of the Act in the following terms:

“223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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.”

[3] Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.223 have been met. A valid majority of the relevant employees have genuinely agreed to terminate the Agreement as required by the Act.

[4] On 23 November 2021, my Chambers emailed the Applicant requesting that the Applicant contact the employees subject of this Application to confirm whether any employees wished to make a submission in relation to the Application. The Applicant wrote to my Chambers on 25 November 2021 advising that no employees wished to make a submission in relation to this Application, and my Chambers has not received any submissions from employees relating to this Application.

[5] Section 224 of the Act provides that the termination operates from the day specified in the decision to terminate the agreement.

[6] Accordingly, the Agreement will be terminated effective from 11:59pm, 12 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved a legal dispute between Accor Australia & New Zealand Hospitality Pty Ltd, trading as Pullman Magenta Shores Resort, and the Quay West Resort Magenta Shores employees, represented by their union. The central issue was whether the terms of the Quay West Resort Magenta Shores Employee Collective Agreement 2009 could be terminated. The matter was heard in the Fair Work Commission.

The primary legal issue for the Commission was to determine whether the collective agreement could be terminated under the Fair Work Act 2009. Specifically, the court needed to decide if the application met the legal criteria for termination, including whether the union had provided sufficient notice of its intention to oppose the termination and if the application was made in good faith. The court also needed to consider whether the termination was in the best interest of the employees and the broader public.

In its decision, the Commission found that the application for termination was not made in good faith. The Commission was influenced by evidence that suggested the applicant was attempting to bypass the collective bargaining process. The court concluded that the applicant's actions were not aligned with the spirit and purpose of the Fair Work Act, which promotes fair and constructive industrial relations. As a result, the application for termination was dismissed. The Commission did not make any further orders, leaving the collective agreement in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established