Haymas Pty Ltd T/A D'Aguilar Hotel

[2013] FWCA 2784

[2013] FWCA 2784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Haymas Pty Ltd T/A D'Aguilar Hotel
(AG2013/5261)

D’AGUILAR HOTEL - CERTIFIED AGREEMENT 2004

Hospitality industry

DEPUTY PRESIDENT ASBURY BRISBANE, 3 MAY 2013

Termination of the D’Aguilar Hotel Certified Agreement 2004.

[1] Haymas Pty Ltd T/A D’Aguilar Hotel (the employer) has made application pursuant to s.222 of the Fair Work Act 2009 (the FW Act) for approval to terminate the D’Aguilar Hotel Certified Agreement 2004 (the Agreement).

[2] The Agreement was certified pursuant to s.170LK of the Workplace Relations Act 1996 (WR Act) on 10 November 2004, and had a nominal expiry date of 9 November 2007.

[3] On 24 April 2013 correspondence was sent to the Applicant pointing out that the application should have been made under s.225 of the FW Act, which applies to Agreements which have passed their nominal expiry date.

[4] Section 225 of the FW Act provides as follows:

225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

[5] The correspondence sent to the Applicant also noted the matters that the Commission is required to be satisfied about before deciding to terminate such an agreement, set out in s.226 of the Act as follows:

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(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 that the termination will have on each of them.

[6] The correspondence went on to request the Applicant to file a Statutory Declaration indicating that the requirements of s.226 of the Act had been met and to provide information about the views of the employees covered by the Agreement and how those views were obtained. The Applicant was also required to provide information about the effect of the termination of the Agreement.

[7] A Statutory Declaration in relation to these matters was received from the Applicant on 26 April 2013, indicating that Haymas Pty Ltd had sold the D’Aguilar Hotel on 19 February 2013. The current employees have no objection to the agreement being terminated.

[8] I am satisfied that it is not contrary to the public interest to terminate what appears to be an out dated Agreement. I have considered the Statutory Declaration on behalf of the Applicant, indicating the acceptance of the current employees support the termination of the Agreement.

[9] I am satisfied with respect to the matters in s.226(a) and consider it is appropriate to terminate the Agreement taking into account all of the circumstances including those in s.226(b). Accordingly, the Agreement is terminated.

[10] The termination will take effect from the date of this Decision.

DEPUTY PRESIDENT

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