Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Cairns Harbour Lights
[2022] FWCA 2452
•21 JULY 2022
| [2022] FWCA 2452 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Cairns Harbour Lights
(AG2022/1849)
The Cairns Harbour Lights Enterprise Agreement 2009
| Hospitality industry | |
| DEPUTY PRESIDENT LAKE | BRISBANE, 21 JULY 2022 |
Application for termination of The Cairns Harbour Lights Enterprise Agreement 2009 – agreement terminated.
On 10 June 2022, Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Cairns Harbour Lights (the Applicant) lodged an application to the Fair Work Commission (the Commission) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the The Cairns Harbour Lights Enterprise Agreement 2009 (the Agreement), which is a single enterprise agreement with a nominal expiry date of 4 February 2014.
The Applicant filed a Form F24 and Form F24A, which provides that the Applicant is the only company covered by the Agreement that employs individuals. The Applicant submitted that the acquisition of the Mirvac Hotels and Resorts portfolio changed the name of the legal entity to Accor Australia & New Zealand Hospitality Pty Ltd. The Applicant has 18 employees that are covered by the Agreement.
There are no unions covered by the Agreement.
Consultation with staff
The Applicant’s Senior Talent & Culture Manager, Melissa Ogden, provided evidence that from at least May 2022 several employees have requested that the Agreement be terminated.
On 6 May 2022, Ms Ogden sent an email to all employees covered by the Agreement with a notification letter advising them of the proposal to terminate the Agreement and provided the dates and times of group consultation sessions to be held.
On 10 May 2022 and 12 May 2022, Ms Ogden held group consultation sessions.
Between 10 May 2022 to 25 May 2022, one-on-one sessions were held with each employee who requested an individual consultation.
On 16 May 2022 and 17 May 2022, Ms Ogden contacted each employee who had not attended a consultation session.
On 17 May 2022, the employees were each sent an email containing:
a) an individual impact letter;
b) a Cairns Harbour Lights Enterprise Agreement 2009 to Hospitality Industry General Award 2020 (HIGA) comparative table; and
c) a PowerPoint presentation explaining why the Applicant intends to terminate the Agreement and the effects of HIGA.
On 17 May 2022, a further email was sent to all employees advising that the voting would be taking place from 26 May 2022 to 28 May 2022.
On 18 May 2022, a ballot information letter and email were sent to all employees. The letter and emailed provided the following information to employees:
a) the ballot would open on 26 May 2022 and close on 28 May 2022,
b) the ballot conductor would be a third-party company, GoVote Pty Ltd;
c) the ballot would occur by SMS;
d) instructions on how to vote would be sent to employees when the voting period commenced by the ballot conductor; and
e) that if an employee was unable to vote during this period, they could contact Ms Ogden to arrange an alternative time to vote.
On 19 May 2022, GoVote Pty Ltd supplied a Ballot Management Plan to Ms Ogden.
On 26 May 2022, the ballot opened. GoVote Pty Ltd sent all employees an email and SMS with instructions on how to vote.
On 27 May 2022, GoVote Pty Ltd sent a ballot reminder email and SMS to all employees.
On 28 May 2022, the ballot closed. Of the Applicant’s 18 employees, 11 casted a valid vote and, of those, 7 approved the termination.
On 30 May 2022, a report of the results from the ballot were sent to all employees.
Consideration
Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement 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.”
Section 224 of the Act confirms that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement.
Based on the material contained in the declaration filed with the application and the documentation provided, I am satisfied the Applicant has made the application within 14 days of the termination being agreed upon by a majority of its employees, after a period of communication and consultation regarding the effects the termination would have on their employment entitlements. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement.
Accordingly, I order that the Agreement be terminated and the termination will operate from 11.59pm on 26 July 2022.
DEPUTY PRESIDENT
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