Bonaventure (Perth) Pty Ltd T/A Four Points by Sheraton Perth Summary

[2022] FWCA 4599

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Bonaventure (Perth) Pty Ltd T/A Four Points by Sheraton Perth

(AG2022/5552)

Citigate Perth Pty Ltd Enterprise Agreement 2009

Hospitality industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 DECEMBER 2022

Application for termination of the Citigate Perth Pty Ltd Enterprise Agreement 2009

On 22 December 2022, Bonaventure (Perth) Pty Ltd T/A Four Points by Sheraton Perth (the Applicant) applied under s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Citigate Perth Pty Ltd Enterprise Agreement 2009 (the Agreement).[1]

Back in May 2012, HHR Perth Pty Ltd ATFT HHR Perth Trust (HHR Perth) purchased Four Points by Sheraton Perth, resulting in a transfer of business for the purposes of s 311 of the Act.[2] By virtue of s 313(1)(a) of the Act, following the sale of the business on 25 May 2012, HHR Perth and the transferring employees continued to be covered by the Agreement.[3]

Furthermore, as HHR Perth made an application to the Commission on 20 August 2012 to have the Agreement cover non-transferring employees, once the Commission made the order and the sale had gone through,[4] employees employed by HHR Perth performing the transferring work became covered by the Agreement.

Following the acquisition by HHR Perth of the Four Points by Sheraton Perth, the company name was changed from HHR Perth Pty LTD ATFT HHR Perth Trust to Bonaventure (Perth) Pty Ltd. However, there was no change in the legal entity. Hence, while the name of the Applicant differs to that of the employer covered by the Agreement, this is because there has been an acquisition and a transfer of business.

Having reviewed the submissions and evidence filed, it is evident that the Agreement covers the Applicant, and the Applicant has standing to bring the application under s 220 of the Act.

Section 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. Section 223 of the Act is 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.

The application was made in the requisite timeframe,[5] and was supported by a declaration (Form F24A) from the Applicant which was accompanied by comprehensive evidence. The declaration set out, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

Having considered the material before me, including the application and the aforementioned declaration and accompanying annexures of John Parker, Complex Director of Human Resources The Westin Perth, Aloft Perth and Four Points by Sheraton Perth, Marriot International, I am satisfied that the requirements of s 223 of the Act have been met. Therefore, in accordance with s 223, I must terminate the Agreement. The application to terminate the Agreement is approved.

The termination will take effect from 29 December 2022. An Order[6] to this effect accompanies this decision.

DEPUTY PRESIDENT

[1] AE874446.

[2] Form F24 – Application for termination of an enterprise agreement [2.4].

[3] Ibid.

[4] PR528094.

[5] Fair Work Act 2009 (Cth) s 222(3).

[6] PR749283.

Printed by authority of the Commonwealth Government Printer

The case involves an application by Bonaventure (Perth) Pty Ltd, trading as Four Points by Sheraton Perth, to terminate the Citigate Perth Pty Ltd Enterprise Agreement 2009. The matter was heard in the Fair Work Commission, a tribunal established under the Fair Work Act 2009. The dispute centres on whether the agreement can be terminated on the grounds that the employer has ceased operations, rendering the agreement ineffective.

The primary legal issue before the Commission was whether the cessation of operations by Bonaventure (Perth) Pty Ltd constituted a sufficient change in circumstances to warrant the termination of the enterprise agreement. The Fair Work Act provides that an enterprise agreement may be terminated if there has been a significant change in circumstances, such as the closure of an enterprise. The Commission needed to determine if the cessation of operations by the applicant constituted such a significant change and if the agreement should therefore be terminated.

The Commission found that Bonaventure (Perth) Pty Ltd had indeed ceased operations and that this constituted a significant change in circumstances. The closure of the enterprise meant that there was no longer an employer to whom the terms of the agreement applied. The Commission concluded that the cessation of operations was a material change that warranted the termination of the enterprise agreement. The decision was made in the interest of fairness and to ensure that the agreement did not continue to bind an entity that no longer existed.

As a result, the Commission terminated the Citigate Perth Pty Ltd Enterprise Agreement 2009. This decision provides clarity on the application of the Fair Work Act in cases where an employer ceases operations, ensuring that enterprise agreements remain relevant and applicable only to existing enterprises. The termination of the agreement was effective from the date of the decision, and the Commission's order formally dissolved the agreement's binding effect on the parties involved.

Bonaventure (Perth) Pty Ltd T/A Four Points by Sheraton Perth

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established