Application to terminate collective agreement-based transitional instruments
[2012] FWA 8644
•9 OCTOBER 2012
[2012] FWA 8644 |
|
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Australian Leisure and Hospitality Group Pty Limited
(AG2012/11152 and AG2012/11153)
Hospitality industry | |
DEPUTY PRESIDENT SAMS | SYDNEY, 9 OCTOBER 2012 |
Application to terminate collective agreement-based transitional instruments.
[1] This decision concerns two applications filed by Australian Leisure and Hospitality Group Pty Ltd (‘the applicant’) on 17 September 2012, under Sch 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’) and s 225 of the Fair Work Act 2009 (‘the Act’) to terminate the Laundy (Exhibition) Pty Ltd Employee Collective Agreement 2006 (AC303048) (‘the Laundy Agreement’) and the Tinlaun Pty Ltd Employee Collective Agreement 2006 (AC303008) (‘the Tinlaun Agreement’) (collectively, ‘the Agreements’). Relevantly, the Agreements have passed their respective nominal expiry dates. The Laundy Agreement covers thirty-four employees of the applicant engaged in working at the North Wollongong Hotel (at which the employing entity was Laundy (Exhibition) Pty Ltd) in North Wollongong, New South Wales and the Tinlaun Agreement covers three employees of the applicant engaged in working at the Harlequin Hotel (at which the employing entity was Tinlaun Pty Ltd) in Pyrmont, New South Wales. These employees would otherwise be covered by the Hospitality Industry (General) Award 2010 [MA000009] (‘the Award’).
[2] Mr Nick Tindall, Chief Operations Manager for the Laundy Hotel Group, which had previously operated both the North Wollongong Hotel and the Harlequin Hotel, provided a statutory declaration in which he said that the Laundy Hotel Group and the applicant had entered into a lease arrangement for the applicant to operate a number of venues earlier in 2012, including the North Wollongong Hotel and the Harlequin Hotel. He went on to say that the Laundy Hotel Group did not object to the termination of the Agreement.
[3] Ms Nicole Musgrave, Human Resources Manager of the applicant, also provided a statutory declaration. She corroborated Mr Tindall’s statements in relation to the arrangement between the Laundy Hotel Group and the applicant. She said further that the applicant wrote to employees of the Harlequin Hotel and the North Wollongong Hotel stating that subject to a positive result of a ballot of those employees, the applicant intended to make an application to Fair Work Australia to terminate the Tinlaun Agreement. The applicant conducted these ballots on 3 September 2012 and all three employees at the Harlequin Hotel and twenty-four employees at the North Wollongong Hotel voted unanimously to terminate, respectively, the Tinlaun Agreement and the Laundy Agreement. Ms Musgrave helpfully provided, as annexures to her declaration, a comparative table setting out the differences between the Agreements and the Award.
[4] At a hearing of the application on 27 September 2012, Mr Phillip Ryan, of the Australian Hotels Association (NSW), appeared for the applicant. He explained that the applicant operates 168 venues in New South Wales and Queensland and that the North Wollongong Hotel and the Harlequin Hotel are the only two that are subject to an employment instrument other than the Award. He noted that while the rates of the pay under the Agreements and the Award were virtually identical, the Award provided significant increases in penalty rates, overtime payments, annual leave loading and additional maternity leave for full-time, part-time and salaried employees. He further submitted that the Agreements were approved under the former WorkChoiceslegislation and that it would not be against the public interest to terminate the Agreements. This was particularly so given that the employees will be significantly better off under the Award.
[5] Section 226 of the Act requires FWA to terminate an expired enterprise agreement, subject to the following requirements:
(a) FWA is satisfied that it is not contrary to the public interest to do so; and
(b) FWA 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.
[6] I am satisfied that it would not be contrary to the public interest to terminate the Agreements. In doing so, I have taken into account the unanimous vote of the employees in favour of terminating the Agreements and the statutory declarations of both Ms Musgrave and Mr Tindall explaining the grounds in favour of the termination of the Agreements. Importantly, I have taken into account the improved terms and conditions detailed above to which the employees would be entitled under the Award and the applicant’s desire for improved operational efficiencies. Accordingly, pursuant to s 227 of the Act, I shall issue an order that will accompany this decision, terminating the Laundy (Exhibition) Pty Ltd Employee Collective Agreement 2006 (AC303048) and the Tinlaun Pty Ltd Employee Collective Agreement 2006 (AC303008) effective on and from 30 September 2012.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, PR529998>
0
0
0