Ambassador Hotels Pty Ltd T/A Rydges Sydney Harbour

[2021] FWCA 5902

[2021] FWCA 5902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Ambassador Hotels Pty Ltd T/A Rydges Sydney Harbour
(AG2021/6899)

HOLIDAY INN OLD SYDNEY ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
COMMISSIONER MATHESON	SYDNEY, 20 SEPTEMBER 2021

Application for termination of the Holiday Inn Old Sydney Enterprise Agreement 2011-2012.

[1] On 26 August 2021, Ambassador Hotels Pty Ltd T/A Rydges Sydney Harbour (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Holiday Inn Old Sydney Enterprise Agreement 2011-2012 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.

[2] The Agreement is a single enterprise agreement. It was approved by Commissioner Thatcher on 4 May 2011. 1

[3] The nominal expiry date of the Agreement is 31 December 2012.

Legislation

[4] The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

Consideration – s.225

Is the Applicant an employer covered by the Agreement?

[5] Clause 1.3.1 names Ambassador Hotels Pty Ltd trading as Holiday Inn Old Sydney as a party to the Agreement. The Applicant is Ambassador Hotels Pty Ltd and I am satisfied it is the same legal entity.

[6] Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the application.

Has the Agreement passed its nominal expiry date?

[7] Clause 1.5.2 of the Agreement provides that the Agreement will nominally expire on 31 December 2012. Having considered the materials before the Commission and clause 1.5.2 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.

Consideration – s.226

Section 226(a) – Public interest

[8] The Applicant submits it is not aware of any matters arising from the termination of the Agreement that would be contrary to the public interest.

[9] In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreement.

Section 226(b) – Appropriateness

The Application indicates that only one employer is covered by the Agreement. The Application indicates that the United Workers Union (formerly United Voice) is an employee organisation covered by the Agreement. This is noted in the Decision of Commissioner Thatcher to approve the Agreement. 2

[10] On 27 August 2021, the Commission directed that:

(a) by no later than 4:00pm on 30 August 2021, the Applicant must serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement;

(b) by no later than 4:00pm on 31 August 2021, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with the direction above;

(c) by no later than 4.00pm on 3 September 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement an outline of arguments, statements of evidence or other documents the Applicant intend to rely upon in support of its application to terminate the Agreement;

(d) by no later than 4.00pm on 9 September 2021, any employee or employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement; and

(e) by no later than 4.00 pm on 13 September 2021, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement any materials it wishes to file in reply.

[11] The Commission’s directions also noted that if any employee or employee organisation covered by the Agreement opposed the application, the matter would be listed for hearing and the absence of opposition to the application would result in the matter being determined on the papers.

[12] On 31 August 2021, Mr Michael Bullen, General Manager of the Applicant, filed a statutory declaration confirming compliance with the above directions, including supporting documentation.

[13] No submissions in opposition were filed by any employee or employee organisation in response to those directions.

[14] The termination of the Agreement would mean that the Hospitality Industry (General) Award 2020 (Award) would apply to Award-covered employees currently covered by the Agreement. The Applicant submitted that the employment conditions in the Award are superior to those in the Agreement in a number of respects, particularly so in relation to penalty rates that are not provided as separate entitlements in the Agreement. The Applicant also submitted that the loaded rates in the Agreement no longer provide equivalent or better remuneration for work performed on weekends in comparison to what would be received under the Award.

[15] In the Form 24C filed in support of the Application, Mr Bullen declares that, in the event of the termination being approved, the Applicant will preserve the following conditions and entitlements for employees covered by the Agreement:

(a) where the amount of an existing hourly base rate of pay is currently higher than what is provide for in the Award, this will be maintained in relation to ordinary hours of work until such time as the Award rates increase to exceed this (with penalties under the Award calculated with reference to the relevant Award base rate of pay);

(b) where the amount of an existing annualised salary is higher than what would be provided for in the Award, this will be maintained until such time as the Award rates increase to exceed this;

(c) the paid parental leave provisions in clause 5.8.3 of the Agreement will continue to be provided;

(d) the staff meal provisions in clause 4.6.1 of the Agreement will continue to be provided; and

(e) the “Flexible Part-Time” allowance of $5.00 per shift in clause 4.6.4 will continue to be provided to part-time employees where they work a Monday to Friday shift and any applicable Award penalties or overtime entitlements total less than $5.00.

[16] In the Form 24C filed in support of the Application, Mr Bullen declares that steps were taken by the Applicant to consider the views of the employees covered by the Agreement. These are described in the Form 24C to include the following:

(a) On 9 August 2021 employees were sent a memorandum by email outlining the proposed application and the effects it would have. An indicative copy of this memorandum was attached to the Form F24C. A document attached to the memorandum set out a comparison of key terms in the Award and Agreement. This document was attached to the Form F24C.

(b) The memorandum invited employees to provide their views by way of an online survey that was open between 9 August 2021 and 21 August 2021. The survey asked the question “Do you support the application to terminate the Holiday Inn Old Sydney Enterprise Agreement 20211-2021”. A copy of the survey results were attached to the Form F24C indicating four employees voted yes and one employee voted no.

[17] The Commission sought further submissions in relation to the effect of differences between provisions in the Agreement and the Award. The Commission also directed the Applicant to serve a notice of listing for a hearing to be held on 20 September 2021 on its employees and the United Workers Union. On 15 September 2021, the United Workers Union informed the Commission it did not intend to make submissions, request to be heard or oppose the Application.

[18] At the hearing on 20 September 2021, the Applicant submitted that the termination of the Agreement would have the effect of modernising employment practices, noting that the Agreement passed its nominal expiry date in 2012 and sets out a “loaded rates arrangement” whereby penalty rates under the Award that would otherwise apply to weekend, late night and early morning work were included in a loaded rate. The Applicant submitted that the loading prescribed by the Agreement has fallen behind the value of the penalty rates under the Award and that moving to the Award would be more beneficial for employees.

[19] The Applicant also submitted that at the time the Agreement was made, the Applicant had an arrangement with a hotel management company resulting in references to “Holiday Inn” within the Agreement. This arrangement is no longer in place with the effect that the name of the Agreement and branding refer to the previous management company of the Applicant.

[20] No submissions were made by the United Workers Union or any employee objecting to the Application.

Conclusion

[21] Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.

[22] Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 22 September 2021. An Order to that effect will be issued in conjunction with this Decision.

COMMISSIONER

<AE885357  PR734141>

Printed by authority of the Commonwealth Government Printer

 1   [[2011] FWAA 2594].

 2   [[2011] FWAA 2594] at [5].