HHR Perth Pty Ltd ATFT HHR Perth Trust T/A Four Points by Sheraton Perth

[2012] FWA 7100

[2012] FWA 7100

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.319 - Application for an order re instruments covering new employer and non-transferring employees in agreements

HHR Perth Pty Ltd ATFT HHR Perth Trust T/A Four Points by Sheraton Perth
(AG2012/9583)

Hospitality industry
COMMISSIONER HARRISON	SYDNEY, 20 AUGUST 2012

Orders relating to instruments covering new employer and transferring employees.

[1] This decision concerns an application filed by HHR Perth trading as Four Points by Sheraton Perth (HHR) for an order pursuant to s.319 of the Fair Work Act 2009 (the Act).

[2] HHR has entered into an agreement with Citigate Perth Pty Ltd for the sale of Citigate Perth, a hotel located at 700 Wellington Street, Perth. The sale of the facility was completed on the 6 March 2012.

[3] It was a part of the arrangement with the seller that HHR offered employees of Citigate Perth ongoing employment at the Hotel. As attrition of the transferring workforce takes place over time, new employees will be engaged to work at the hotel (non-transferring employees).

[4] In support of the application HHR states it “... is desirable that all employees of the new employer be covered by the one industrial instrument. It would give rise to significant dysfunctionality were the new owner to be required to apply differing conditions of employment across its workforce. It is industrially unsound to contemplate an outcome wherein employees working side by side and undertaking the same work were required to be employed under different industrial instruments and different conditions of employment.”

[5] By way of a statutory declaration sworn on 8 August 2012, Ms Joanne McPhee, Human Resources Manager of HHR sets out the steps taken to ascertain views of the relevant employees.

[6] Section 319(3) states that in deciding whether to make the order, FWA 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.

(h) such other grounds and reasons as Fair Work Australia may deem met.”

[7] Having considered the matters set out in s.319(3) of the Act and the declaration of Ms McPhee, I am satisfied the order should be issued.

[8] The order to be published as PR528094 will come into operation on 20 August 2012.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AE874446  PR528093>