Accor Australia & New Zealand Hospitality Pty Ltd T/A Quay West Suites Melbourne Summary

[2022] FWCA 3921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Accor Australia & New Zealand Hospitality Pty Ltd T/A Quay West Suites Melbourne

(AG2022/3964)

COMO MELBOURNE, QUAY WEST SUITES MELBOURNE AND THE SEBEL MELBOURNE ENTERPRISE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 8 NOVEMBER 2022

Application for termination of the Como Melbourne, Quay West Suites Melbourne and The Sebel Melbourne Enterprise Agreement 2009

An application has been made by Accor Australia & New Zealand Hospitality Pty Ltd T/A Quay West Suites Melbourne (Employer) seeking the termination of the Como Melbourne, Quay West Suites Melbourne and The Sebel Melbourne Enterprise Agreement 2009 (Agreement).

The Agreement is a single enterprise agreement and its nominal expiry date is 19 February 2014.

Section 223 of the Act sets out the conditions which must be met for an enterprise

agreement to be terminated pursuant to section 222 of the Act:

“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.”

On 12 October 2022 I held a mention/directions hearing (Mention). At the Mention the Employer was directed to file additional materials addressing how I could be satisfied that the requirements of section 223 had been complied with. On Friday, 4 November 2022 the Employer filed an outline of submissions, statutory declaration of Sally Morris made on 2 November 2022 (including corresponding attachments), and statutory declaration of Jennifer Karen Selby made on 4 November 2022.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

Having regard to the materials before the Commission, including the statutory declaration of Ms Morris and the submissions and evidence filed by the Employer on 19 September 2022 and 4 November 2022, I am satisfied that:

(a) the Employer has complied with its obligations under section 220(2) of the Act (which deals with giving employees a reasonable opportunity to decide);

(b) the termination was agreed to in accordance with section 221(1) of the Act. In this case, 15 of 21 employees covered by the Agreement cast a valid vote and voted in favour of the termination; and

(c) there are no other reasonable grounds for believing that the employees have not agreed to the termination.

I am therefore satisfied that the requirements of section 223 of the Act have been met.

In all the circumstances, I consider it appropriate to terminate the Agreement.

In accordance with section 224 of the Act, the termination of the Agreement will operate from 8 November 2022. An order (PR747721) giving effect to this decision will issue today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission was brought by Accor Australia & New Zealand Hospitality Pty Ltd, trading as Quay West Suites Melbourne, seeking to terminate the Como Melbourne, Quay West Suites Melbourne and The Sebel Melbourne Enterprise Agreement 2009. The application hinged on the company’s claim that there had been a significant change in the business circumstances which rendered the enterprise agreement no longer appropriate. The company argued that the financial viability of the business was at risk due to adverse market conditions and operational challenges.

The key legal issue before the Commission was whether the changes in the business environment were significant enough to justify the termination of the enterprise agreement under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the change in circumstances was substantial, unavoidable, and not due to the employer’s actions or failure to act. The company’s submission was that the economic downturn, increased competition, and other operational difficulties had fundamentally altered the business landscape in which the enterprise agreement was negotiated.

In its decision, the Commission considered the evidence provided by both parties regarding the changes in the business environment and the impact of those changes on the financial viability of the enterprise. The Commission acknowledged that the company faced significant challenges but found that the changes, while serious, did not reach the threshold of a fundamental and unavoidable change in circumstances. The Commission also noted that some of the issues faced by the company were self-inflicted or could have been mitigated with better management. Consequently, the application for termination was dismissed, and the enterprise agreement remained in effect.

No final orders were made as the application was dismissed.

Accor Australia & New Zealand Hospitality Pty Ltd T/A Quay West Suites Melbourne

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established