Emirates Hotels (Australia) Pty Ltd t/as Wolgan Valley Resort and Spa

[2013] FWCA 2679

[2013] FWCA 2679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Emirates Hotels (Australia) Pty Ltd t/as Wolgan Valley Resort and Spa
(AG2013/6134)

EMIRATES HOTELS (AUSTRALIA) PTY LIMITED COLLECTIVE AGREEMENT

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 MAY 2013

Application for termination of the Emirates Hotels (Australia) Pty Limited Collective Agreement.

[1] This decision concerns an application, filed by Emirates Hotels (Australia) Pty Ltd t/as Wolgan Valley Resort and Spa (the ‘applicant’) on 19 April 2013 pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Emirates Hotels (Australia) Pty Limited Collective Agreement [AC328254]. The Agreement is a collective agreement for the purposes of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the ‘Transitional Act’). Relevantly, the Agreement passed its nominal expiry date on 13 October 2010. The Agreement currently covers 89 employees of the applicant working at the Wolgan Valley Resort and Spa near Lithgow, New South Wales who would otherwise be covered by the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’).

[2] The applicant relied on a statutory declaration attested to by Mr D Hannan, Human Resources Specialist for the applicant, in which he deposed that meetings had been held with employees in November 2012 and March 2013. Staff were also provided with documents discussing the intention of the applicant to terminate the agreement and setting out that the applicant intended to retain a number of applicable benefits under the Agreement while generally being covered by the Award. Staff were asked to sign and return this document indicating that they understood that their terms and conditions were protected and that they agreed to the termination of the Agreement. Copies of these documents are attached to this decision and marked ‘Annexure ‘A’’ and ‘Annexure ‘B’’. The applicant also provided a document which was said to disclose that 48 of the 89 employees had indicated that they accepted the termination of the Agreement, although not all employees returned the signed acknowledgment.

[3] At a hearing of the application on 1 May 2013, Ms L Bester, Manager HR (Industrial Relations) appeared for the applicant assisted by Mr S Morrissey of the Australian Hotels Association. Ms Bester explained that the applicant had entered into agreement in 2007 with the New South Wales Government to operate an ‘eco-friendly’ resort and the hotel and resort were subsequently completed in late 2009. The Agreement was drafted as an employer greenfields Agreement in 2008 under the previous legislative regime, which allowed for employers to enter into such agreements without negotiating with other parties. She said further that the applicant intended to maintain the current scales above the award rate, but that those currently below the Award rate will be increased to the Award rate. There were a number of other benefits to employees by being now covered by the Award. Ms Bester proposed that any determination made by the Commission to terminate the Agreement should be operative with immediate effect.

CONSIDERATION

[4] Item 2(5)(c) of Sch 3 of the Transitional Act provides that:

‘2 WR Act instruments that continue in existence as transitional instruments

...

(5) Transitional instruments are classified as follows:

...

(c) agreement-based transitional instruments of the following kinds are collective agreement-based transitional instruments:

(i) collective agreements;

(ii) workplace determinations;

(iii) preserved collective State agreements;

(iv) pre-reform certified agreements;

(v) old IR agreements;

(vi) section 170MX awards;’

[5] Item 16 of Schedule 3 of Transitional Act is expressed as follows:

‘16 Collective agreement-based transitional instruments: termination by FWA

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.’

[6] Section 226 of the Act requires the Commission to terminate an expired enterprise agreement on application under s 225 of the Act, subject to the following requirements:

‘(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 the termination will have on each of them.’

[7] I am satisfied that it would not be contrary to the public interest to terminate the Agreement, particularly given the importance of maintaining employment in regional New South Wales. In being so satisfied, I accept the evidence that a majority of the employees indicated that they were in favour of the termination of the Agreement and the statutory declaration of Mr Hannan explaining the grounds in favour of the termination. I have also taken into account the fact that the applicant has provided information to its employees guaranteeing a number of beneficial terms and conditions from the Agreement will be maintained upon the termination of the Agreement. In any event, I am satisfied that the employees will be better off under the Award than the Agreement. Pursuant to s 227 of the Act, the Emirates Hotels (Australia) Pty Limited Collective Agreement is terminated from 1 May 2013.

DEPUTY PRESIDENT

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<Price code A, AC328254  PR536189>