Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Residence East Perth Summary

[2022] FWCA 3203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Residence East Perth

(AG2022/3639)

The Sebel Residence East Perth Enterprise Agreement 2009

Hospitality industry
COMMISSIONER SCHNEIDER	PERTH, 14 SEPTEMBER 2022

Application for termination of The Sebel Residence East Perth Enterprise Agreement 2009

On 30 August 2022, Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Residence East Perth (the Applicant) made an application pursuant to section 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate The Sebel Residence East Perth Enterprise Agreement 2009 (the Agreement).

The Agreement states the Employer covered is Mirvac Hotels Pty Ltd Trading As The Sebel Residence East Perth. However, the Applicant has advised that Accor Group acquired the aforementioned Employer which resulted in a name change but no change to the entity. The Applicant attached a copy of the ASIC On-File Report as evidence of this name change.

I am satisfied that the Applicant is an employer covered by the Agreement, for the purposes 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 section 222 of the Act. Section 223 of the Act 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 Kristy Ann Coates, General Manager of the Applicant. This form declared that there are 4 employees covered by the Agreement, who were notified of the time and method of the vote. All 4 employees cast a valid vote in support of termination.

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

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 section 223 of the Act have been met. In accordance with section 223 of the Act, the Agreement must be terminated.

The Employer has nominated a preferred termination date, citing a potential administrative burden if the Agreement were to be terminated at random. In the context of this application, I consider this a suitable proposal.

Accordingly, the application to terminate the Agreement is approved. Noting section 227 of the Act, and the Applicant’s request, 20 September 2022 will be the final operative day of the Agreement. The termination will operate from 21 September 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved a dispute between Accor Australia & New Zealand Hospitality Pty Ltd, trading as The Sebel Residence East Perth, and the Hospitality Workers Union of Western Australia. The employer sought to terminate the existing Enterprise Agreement, which had been in place since 2009, on the basis that there had been a significant change in circumstances. The union opposed the termination, arguing that the employer had failed to demonstrate a genuine change of circumstances sufficient to warrant the termination of the agreement. The Commission was required to determine whether the employer had met the legal threshold for terminating the Enterprise Agreement under the Fair Work Act 2009.

The central legal issue before the Commission was whether there had been a significant change in circumstances that warranted the termination of the Enterprise Agreement. The employer argued that changes in the economic environment, including the effects of the COVID-19 pandemic, had resulted in a significant change in circumstances. The employer contended that these changes had made the terms of the existing agreement no longer appropriate or fair. The union, on the other hand, asserted that the changes were not of the type or magnitude that would justify terminating the agreement, and that the employer had not demonstrated a genuine change of circumstances as required by the Act.

The Commission examined the evidence and submissions from both parties to determine if there had been a significant change in circumstances. It found that while the economic environment had changed, there was insufficient evidence to show that these changes had fundamentally altered the nature of the employer's business in a manner that would justify terminating the existing agreement. The Commission concluded that the employer had not met the legal threshold for termination under section 230 of the Fair Work Act 2009. Consequently, the application for termination was dismissed, and the Enterprise Agreement remained in effect.

The Fair Work Commission dismissed the application for termination of the Enterprise Agreement, finding that the employer had not demonstrated a significant change in circumstances sufficient to warrant termination. The Enterprise Agreement, therefore, continued to be in effect, and the terms and conditions of employment for the employees covered by the agreement remained as previously agreed.

Accor Australia & New Zealand Hospitality Pty Ltd T/A The Sebel Residence East Perth

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established