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

[2022] FWCA 92

[2022] FWCA 92

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

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

(AG2021/9313)

The Sebel Maroochydore Employee Collective Agreement 2007-2012

Hospitality industry
COMMISSIONER HUNT	BRISBANE, 13 JANUARY 2022

Application for termination of The Sebel Maroochydore Employee Collective Agreement 2007 - 2012

1. On 23 December 2021, Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Maroochydore (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate The Sebel Maroochydore Employee Collective Agreement 2007 - 2012 (the Agreement).

1. The Agreement covers the Employer Mirvac Hotels Pty Ltd. In the Form F24 application, the Employer has advised that:

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

1. 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.

1. 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.

1. 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, 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.”

1. The application was supported by a Form F24A statutory declaration made by Simren Dhillon, Regional Talent & Culture Manager of the Employer, which declared, amongst other things, that the 14 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 13 votes cast, 13 employees approved the termination of the Agreement.

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

1. There are no employee organisations covered by the Agreement. Therefore, s.223(d) is not a relevant factor.

1. 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.

1. Attached to the application, the Employer nominated a preferred date for the termination of the Agreement; 22 February 2022 to allow it to accommodate the administrative burden from applying the Agreement to then applying the Hospitality Award.  I consider this to be a suitable date, having regard to the effort the Employer has undertaking with its employees to reach Agreement, noting that the Hospitality Award will provide, on the whole, greater entitlements to employees. 

1. Having regard to s.227 of the Act, I consider the result will be that 21 February 2022 is the final day the Agreement is operative, and the termination operates from 22 February 2022.

COMMISSIONER

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