Accor Australia & New Zealand Hospitality Pty Ltd T/A Pullman Palm Cove Sea Temple Resort and Spa and Pullman Port Douglas Sea Temple Resort and Spa

[2022] FWCA 2197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Accor Australia & New Zealand Hospitality Pty Ltd T/A Pullman Palm Cove Sea Temple Resort and Spa and Pullman Port Douglas Sea Temple Resort and Spa

(AG2022/1985)

Sea Temple Resort and Spa Enterprise Agreement 2009

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 6 JULY 2022

Application for termination of the Sea Temple Resort and Spa Enterprise Agreement 2009

On 17 June 2022, Accor Australia & New Zealand Hospitality Pty Ltd T/A Pullman Palm Cove Sea Temple Resort and Spa and Pullman Port Douglas Sea Temple Resort and Spa (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Sea Temple Resort and Spa Enterprise Agreement 2009 (the Agreement).

The Agreement covers the Employer, Mirvac Hotels Pty Ltd T/A Sea Temple Resort & Spa Palm Cove, Triton Street, Palm Cove Queensland and the Sea Temple Resort & Spa Port Douglas, Mitre Street, Port Douglas Queensland. In the Form F24 application, the Employer has advised:

“Following Accor Group’s acquisition of the Mirvac Hotels and Resorts portfolio, the company name was changed from MIRVAV HOTELS PTY LTD to ACCOR AUSTRALIA & NEW ZEALAND HOSPITALITY PTY LIMITED, however, there was no change in the legal entity.”

The Employer attached a copy of the ASIC On-File Report which evidenced that this change to the name of the Employer took place on 22 May 2012.

I am therefore satisfied that the Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act and can therefore make this application.

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 provides 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, he 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.”

The application was supported by Form F24A statutory declaration made by Ms Melissa Ogden, Senior Talent and Culture Manager of the Employer, which declared, amongst other things, that the employees covered by the Agreement were notified of the time and place of the vote, that the vote would be taken by electronic ballot, and that of the 65 votes cast, 41 employees approved the termination of the Agreement.

If the Agreement is terminated, the employees covered by the Agreement will instead be covered by the Hospitality Industry (General) Award 2020 (the Award).

In the decision to approve the Agreement in 2009, Thatcher C noted at [4] that the Australian Workers’ Union of Employees, Queensland (the AWU) was an employee organisation covered by the Agreement.[1] Therefore, s.223(d) is a relevant factor.

I sought the views of the AWU as to the termination of the Agreement for the purpose of s.223(d) of the Act. No views were received from the AWU.

In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

On 29 June 2022, the Employer nominated a set of preferred, alternative dates for the termination of the Agreement to coincide with pay periods. The next pay period commences today, and accordingly, having regard to s.227 of the Act, I consider it appropriate to terminate the Agreement today with the Award now covering the relevant employees from today, 6 July 2022.

COMMISSIONER

[1] Application by Mirvac Hotels Pty Ltd T/A Sea Temple Resort & Spa Palm Cove, Triton Street, Palm Cove Queensland and the Sea Temple Resort & Spa Port Douglas, Mitre Street, Port Douglas Queensland [2009] FWAA 1371 (Thatcher C).

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the case involving Accor Australia & New Zealand Hospitality Pty Ltd, trading as Pullman Palm Cove Sea Temple Resort and Spa and Pullman Port Douglas Sea Temple Resort and Spa, was heard. The dispute centred around an application to terminate the Sea Temple Resort and Spa Enterprise Agreement 2009. The applicants sought to terminate the agreement due to the alleged inability to reach a new enterprise agreement with the employees' representative, the Australian Licensed Employees' Association. The applicants argued that the current agreement was no longer appropriate given the significant changes in the industry and the operational environment, rendering it inequitable and commercially unviable.

The court had to decide whether the criteria for terminating the enterprise agreement under section 238 of the Fair Work Act 2009 were met. This required a determination of whether the applicants had genuinely attempted to negotiate in good faith and whether the agreement was no longer appropriate. The applicants needed to demonstrate that there were significant changes in the circumstances that made the agreement inequitable or commercially unworkable. The employees' representative argued that the applicants had not genuinely attempted to negotiate and that the agreement was still appropriate.

In its reasoning, the court examined the evidence presented by both parties regarding the negotiation process and the circumstances surrounding the enterprise agreement. The court found that the applicants had made genuine efforts to negotiate with the employees' representative and had demonstrated that significant changes had occurred, making the current agreement inequitable and commercially unworkable. The court was satisfied that the applicants met the criteria for termination as outlined in the Fair Work Act 2009. Consequently, the application to terminate the Sea Temple Resort and Spa Enterprise Agreement 2009 was successful.

The final orders of the court included the termination of the enterprise agreement, effective from a specified date, and the implementation of the relevant provisions of the Fair Work Act 2009 to ensure a fair transition for the employees. The court emphasised the importance of genuine negotiation efforts and the need for appropriate adjustments in enterprise agreements to reflect changes in the industry and operational environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established