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

[2022] FWCA 94

[2022] FWCA 94

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

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

(AG2021/9305)

The Sebel Resort Noosa Enterprise Agreement 2009

Tourism industry
COMMISSIONER HUNT	BRISBANE, 13 JANUARY 2022

Application for termination of The Sebel Resort Noosa Enterprise Agreement 2009

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

1. The Agreement covers the Employer Mirvac Hotels Pty Ltd T/A The Sebel Resort Noosa. 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 24 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 21 votes cast, 20 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. In the decision to approve the Agreement in 2010, Thatcher C noted at [4] that the Liquor, Hospitality and Miscellaneous Union (LHMU) was an employee organisation covered by the Agreement.[1] Therefore, s.223(d) is a relevant factor.

1. From 1 March 2011, the LHMU became known as ‘United Voice’.[2]  On 11 November 2019, United Voice amalgamated with the National Union of Workers (NUW), becoming a single entity known as the United Workers Union (UWU).[3]

1. Accordingly, I sought the views of the UWU as to the termination of the Agreement for the purpose of s.223(d) of the Act.  On 7 January 2022, Mr Sheldon Oski, Lead Industrial Officer of the UWU advised that the UWU did not wish to be heard in relation to the proposed termination. Later, on 12 January 2022, Mr Jared Marks, Industrial/Legal Officer of the UWU further advised that, while the UWU did not express a view or make a submission in relation to this matter, the UWU remained an interested party.

1. I am therefore satisfied that s.223(d), while a relevant factor, is not material to this application as the UWU did not wish to provide any views.

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.  I note there was no objection made by the UWU in relation to this request.

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

[1] Application by Mirvac Hotels Pty Ltd T/A The Sebel Resort Noosa [2010] FWAA 1182 (Thatcher C).

[2] Application by Liquor, Hospitality and Miscellaneous Union [2011] FWA 766 (Watson VP).

[3] Application by United Voice and National Union of Workers [2019] FWC 6756 (Gostencnik DP).

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