CES Mandurah Hotel (WA) Pty Ltd T/A The Sebel Mandurah

[2022] FWCA 1115

[2022] FWCA 1115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

CES Mandurah Hotel (WA) Pty Ltd T/A The Sebel Mandurah

(AG2022/865)

The Sebel Mandurah Enterprise Agreement 2009

Hospitality industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 4 APRIL 2022

Application for termination of The Sebel Mandurah Enterprise Agreement 2009

1. On 24 March 2022, CES Mandurah Hotel (WA) Pty Ltd T/A The Sebel Mandurah (the Applicant) applied under s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the The Sebel Mandurah Enterprise Agreement 2009 (the Agreement).[1].

1. The Agreement covers Mirvac Hotels Pty Ltd T/A The Sebel Mandurah and the employees of that same entity working in hospitality, managerial, beauty and clerical positions.  However, while the name of the Applicant differs to that of the employer covered by the Agreement, the Applicant submits that this is because there has been several acquisitions and two transfers of business.

1. 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.

1. 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.

1. The application was made in the requisite timeframe,[2] 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.

1. Having considered the material before me, including the application and the aforementioned declaration and accompanying annexures of Ms Davis, Hotel General Manager, 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.

1. The termination will take effect from 5 April 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE874450  PR739829>

[1] [2010] FWAA 1649; AE874450; PR994334.

[2] Section 222(3) of the Fair Work Act 2009 (Cth).

Printed by authority of the Commonwealth Government Printer

<AE874450  PR739829>