Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Brisbane Summary

[2022] FWCA 2002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Brisbane

(AG2022/1848)

QUAY WEST SUITES BRISBANE AND THE SEBEL SUITES BRISBANE EMPLOYEE COLLECTIVE AGREEMENT 2007 - 2012

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 17 JUNE 2022

Application for termination of the Quay West Suites Brisbane and The Sebel Suites Brisbane Employee Collective Agreement 2007-2012

On 10 June 2022, Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Brisbane (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate Quay West Suites Brisbane and The Sebel Suites Brisbane Employee Collective Agreement 2007 – 2012 (the Agreement).

The application was made using a Form F24. I notified the Employer that the application referred to a collective agreement-based transitional instrument, within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009: Schedule 3, items 15 and 16. I invited the Employer to complete and lodge a Form F28.

On 14 June 2022, the Employer lodged a completed Form F28. I have exercised the discretion in s.586 to treat the application as though it had been made using the Form F28 as filed. An order PR742616 to this effect has been issued.

The Agreement covers the Employer and the employees for whom classifications are provided in the Agreement.

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, if established, require the Commission to terminate the Agreement 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 a Form F24A statutory declaration made by Melissa Ogden, Senior Talent & Culture Manager of the Employer, which declared, amongst other things, that the 50 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 43 votes cast, 40 employees approved the termination of the Agreement.

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

For the purpose of s.223(d) of the Act, I note that there are no employee organisations covered by the Agreement whose views are required to be taken into account.

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.

The Employer has not nominated a preferred date for the termination of the Agreement.

Having regard to s.227 of the Act, the termination will operate from the day of this decision, being 17 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application by Accor Australia & New Zealand Hospitality Pty Ltd, trading as The Sebel Brisbane, seeking to terminate the Quay West Suites Brisbane and The Sebel Suites Brisbane Employee Collective Agreement 2007-2012. The application was heard by the Fair Work Commission. The primary legal issue before the commission was whether the agreement should be terminated on the grounds that there were no longer any employees covered by the agreement. This was due to the cessation of the parties' operations at the respective hotels, leading to the redundancy of all employees.

The Fair Work Commission examined the statutory criteria for terminating an agreement under the Fair Work Act. The commission noted that the agreement could be terminated if there were no longer any employees covered by it. The commission also considered the implications of the termination, including the impact on any employees who might be rehired in the future. The commission concluded that the agreement could indeed be terminated, as there were no employees currently covered by it, and that the agreement would remain terminated until such time as there were employees to be covered by it again.

The Fair Work Commission ultimately ruled in favour of the applicant, granting the application for the termination of the collective agreement. The commission determined that the agreement was no longer applicable as there were no employees covered by it. The decision was made on the basis that the cessation of operations at the hotels resulted in the redundancy of all employees, and no employees were currently employed under the agreement.

The final orders included the termination of the collective agreement, effective from the date of the decision, and a provision for the agreement to remain terminated until such time as there were employees to be covered by it again. The commission emphasised that the termination would not affect any future employees who might be hired under the agreement at a later date.

Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Brisbane

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established