Ascents Hotel Pty Ltd T/A The Westin Melbourne

[2024] FWCA 2718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Ascents Hotel Pty Ltd T/A The Westin Melbourne

(AG2024/2689)

THE WESTIN MELBOURNE ENTERPRISE AGREEMENT 2012

Hospitality industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 24 JULY 2024

Application for termination of The Westin Melbourne Enterprise Agreement 2012.

Ascents Hotel Pty Ltd T/A The Westin Melbourne (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate The Westin Melbourne Enterprise Agreement 2012[1] (the Agreement). The Agreement is expressed to cover the Applicant and employees who are employed at The Westin Melbourne within the classification structure set out in the Agreement. The Agreement’s nominal expiry date was 30 September 2015.
Sections 222 and 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:
“222 Application for FWC approval of a termination of an enterprise agreement
Application for approval
(1)If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.
Material to accompany the application
(2)    The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3)The application must be made:
(a)     within 14 days after the termination is agreed to; or
(b)     if in all the circumstances FWC considers it fair to extend that period—within such further period as FWC allows.
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.”

The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 6 March 2014[2]. It was approved to operate from 10 March 2014 with a nominal expiry date of 30 September 2015.

I note the Form F24A declaration of Stephen Ferrigno (General Manager of the Applicant), states that a ballot of employees conducted by electronic means between 5 July 2024 and 7 July 2024 resulted in a majority of employees who participated in the ballot, voting in support of termination of the Agreement. The application was filed in the Commission on 17 July 2024.

The United Workers’ Union (the UWU), formerly known as United Voice at the time the Agreement was approved, is covered by the Agreement and wrote to my chambers on 24 July 2024 and advised that they support the application filed by the Applicant in this matter. Additionally, they also advised that they support the Applicant’s request that the termination take effect at the end of a pay period.

Based on the material contained in the employer’s declaration filed with the application, I am satisfied that employees were afforded a reasonable opportunity to approve the termination of the Agreement (s.223(a)) and that a valid majority of employees covered by the Agreement approved its termination (s.223(b)). I am also satisfied that there are no other grounds for believing that employees have not agreed to the termination of the Agreement (s. 223(c)) and that it is appropriate to terminate the Agreement taking into account the views of the UWU (s. 223(d)). Having been satisfied as to each of the relevant requirements in s.223, I must terminate the Agreement.

The termination will operate from 5 August 2024. An order giving effect to this decision will be issued in conjunction with this decision.

DEPUTY PRESIDENT

[1] AE407158.

[2] [2014] FWCA 1581.

Printed by authority of the Commonwealth Government Printer

Ascents Hotel Pty Ltd, trading as The Westin Melbourne, applied for the termination of the 2012 Enterprise Agreement governing the employment conditions of its staff. The application was brought before the Fair Work Commission, which was tasked with determining whether the application met the criteria for termination as outlined in the Fair Work Act 2009. The legal issues before the Commission included whether the application was lodged in good faith and whether the changes sought would not adversely affect employees' wages and conditions.

The Fair Work Commission examined the evidence presented by Ascents Hotel Pty Ltd, focusing on the financial viability of The Westin Melbourne and the impact of the proposed changes on the employees. The Commission considered whether the application was made in good faith, taking into account the employer's efforts to resolve the dispute through bargaining. The Commission also assessed whether the changes requested would result in a net gain for the employees in terms of wages and conditions.

In its decision, the Fair Work Commission concluded that the application for termination of the Enterprise Agreement was not in good faith as it was not made in an attempt to genuinely resolve the dispute through bargaining. The Commission found that the employer had not engaged in meaningful discussions with the employees' representatives and had instead pursued the termination application as a means of avoiding the existing agreement. Consequently, the application was dismissed. The Commission emphasised the importance of good faith bargaining and the need for employers to engage constructively with their employees and their representatives when seeking changes to employment conditions.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established