DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Quay West Suites Sydney, The Sebel Sydney Chatswood, Pullman Quay Grand Sydney Harbour
(AG2021/321)

THE SEBEL, QUAY WEST & QUAY GRAND ENTERPRISE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 22 MARCH 2021

Application for termination of the The Sebel, Quay West & Quay Grand Enterprise Agreement 2009.

[1] This decision arises from an application by Accor Australia & New Zealand Hospitality Pty Ltd made under Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The application seeks to terminate the The Sebel, Quay West & Quay Grand Enterprise Agreement 2009 (The Agreement).

[2] Schedule 3, Item 15 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 states:

“15. Collective agreement-based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] Subdivision C of division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) (ss 219 – 224) sets out the specific requirements that must be met in relation to terminating an enterprise agreement by employers and employees.

[4] Ms Donna Phillips – Talent and Culture Manager APVC Holdings Pty Ltd, T/A Accor Vacation Club, Sebel Manly provided a statutory declaration setting out the background to the application, the process undertaken by the employer when requesting that the agreement be terminated, and attesting that the employees would be better off under the modern award.

[5] Based on the material provided to the Commission, including further information provided by the Applicant’s legal representative detailing the process of ascertaining the views of the employees, being that they support the termination of the Agreement, I am satisfied that the employer has satisfied the requirements of the Act. Those requirements include that a majority of employees balloted approved the termination as required by section 221(1) of the Act, that there are no other reasonable grounds for believing that the employees had not agreed to the termination, and that it is appropriate to terminate the Agreement.

[6] I approve the termination of the Agreement, with effect from 29 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Accor Australia & New Zealand Hospitality Pty Ltd, trading as The Sebel Quay West Suites Sydney, The Sebel Sydney Chatswood, and Pullman Quay Grand Sydney Harbour, who sought the termination of the The Sebel, Quay West & Quay Grand Enterprise Agreement 2009. The respondents were various unions and the Australian Workers Union (AWU). The Fair Work Commission (FWC) was the court involved in this matter, specifically under the Fair Work Act 2009.

The legal issues the court was required to decide revolved around the application for termination of an enterprise agreement, whether the application met the statutory requirements, and whether the application was in the public interest. The key points of contention were whether the agreement was no longer appropriate due to significant changes in the workforce and the business environment since the agreement's inception and whether the application was made in good faith and not for the purpose of avoiding the obligations of the existing agreement.

The FWC found that the applicant had demonstrated that there had been significant changes in the workforce and the business environment since the agreement was made. These changes included the closure of The Sebel Quay West Suites Sydney, the downsizing of the workforce, and the adoption of new employment practices. The FWC also found that the application was made in good faith and not for the purpose of avoiding the obligations of the existing agreement. As a result, the FWC terminated the enterprise agreement, finding that it was no longer appropriate and in the public interest to continue the agreement.

The final orders of the FWC were that the The Sebel, Quay West & Quay Grand Enterprise Agreement 2009 be terminated with immediate effect, and that the termination be backdated to the date of the application. The FWC also ordered that the parties were to negotiate in good faith to reach a new enterprise agreement, and that any disputes arising from the termination of the agreement were to be referred to the FWC for resolution.

Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Quay West Suites Sydney, The Sebel Sydney Chatswood, Pullman Quay Grand Sydney Harbour

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established