Harbord Hotel Operations Pty Ltd t/a Harbord Beach Hotel

[2020] FWC 1569

[2020] FWC 1569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 318 - Application for an order relating to instruments covering new employer and transferring employees

Harbord Hotel Operations Pty Ltd t/a Harbord Beach Hotel
(AG2020/437)

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 3 APRIL 2020

Application for an order relating to instruments covering new employer and transferring employees.

[1] This is an application, filed on 24 February 2020, by Harbord Hotel Operations Pty Ltd t/a Harbord Beach Hotel (the ‘applicant’), pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’). The applicant seeks orders from the Fair Work Commission (the ‘Commission’), pursuant to s 318(1)(a) of the Act, that the Bretroe Pty Ltd Employee Collective Agreement 2007 (the ‘Agreement’) does not cover Harbord Hotel Operations Pty Ltd and all transferring employees.

The applicable legislation

[2] The following provisions of the Act are relevant to my determination of this application:

‘318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.’

[3] The applicant has provided written submissions in support of its application which address each of the matters the Commission is required to take into account in considering the application. I note that the employer sought the views of the affected employees at meetings held on 22 January 2020 and provided a letter to all employees who were not able to be in attendance. Of the 47 transferring employees, 46 provided responses which the applicant has attached to the application. Only one response indicated that a preference for the Agreement to continue to apply. I also note that the nominal expiry date of the Agreement was 13 December 2007, and that the terms of the Hospitality Industry (General) Award 2010 offers more beneficial terms and conditions than the Agreement, as the Applicant has set out in its application.

[4] Having considered the submissions of the Applicant, the relevant statutory provisions, the support of the employees and the public interest, I am satisfied that the orders sought by the applicant should be made. Orders giving effect to my decision will be published contemporaneously with this decision, and will take effect from today.

DEPUTY PRESIDENT

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