Hilton Hotels of Australia Pty Ltd T/A Hilton Brisbane

[2023] FWCA 1186

[2023] FWCA 1186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Hilton Hotels of Australia Pty Ltd T/A Hilton Brisbane

(AG2023/1125)

HILTON BRISBANE ENTERPRISE AGREEMENT 2010

Hospitality industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 26 APRIL 2023

Application for termination of the Hilton Brisbane Enterprise Agreement 2010

1. Hilton Hotels of Australia Pty Ltd T/A Hilton Brisbane (the Applicant) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act), to terminate the Hilton Brisbane Enterprise Agreement 2010[1] (the Agreement). The Agreement is expressed to cover the Applicant and employees falling within the scope of the classification structure in the Agreement. The Agreement’s nominal expiry date is 1 July 2013.

1. Sections 222 and 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:

“222 Application for FWC approval of a termination of an enterprise agreement

Application for approval

(1)   If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.

Material to accompany the application

(2)   The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)   The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWC considers it fair to extend that period— within such further period as FWC allows.

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 Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 20 July 20102. It was approved to operate from 27 July 2010 with a nominal expiry date of 27 July 2013.[2] It is an agreement made with employees and the Liquor, Hospitality and Miscellaneous Union.

1. I note that the statutory declaration of Adrienne Putelli, who is the Human Resources Manager for the Applicant, states that a ballot of employees conducted between 29 March 2023 and 6 April 2023 resulted in a majority of employees who participated in the ballot, voting in support of termination of the Agreement. The application was filed in the Commission on 19 April 2023. I note that the Employer went to extensive lengths to communicate with effected staff and that key benefits of the Agreement were preserved for employees.[3]

1. Based on the material contained in the employer’s declaration filed with the application, I am satisfied that employees were afforded a reasonable opportunity to approve the termination of the Agreement (s.223(a)) and that a valid majority of employees covered by the Agreement approved its termination (s.223(b)). I note correspondence from the United Workers Union (UWU) dated 24 April 2023 that they have no objection to the termination of the Agreement and have notified the Commission that they have no wish to be heard in the matter. I am also satisfied that there are no other grounds for believing that employees have not agreed to the termination of the Agreement (s. 223(c)) and that it is appropriate to terminate the Agreement (s. 223(d)). Having been satisfied as to each of the relevant requirements in s.223, I must terminate the Agreement.

1. I am satisfied that the relevant matters have been considered and satisfied and there it is appropriate to terminate the Agreement. Pursuant to s224 of the Act, the termination will operate from 26 April 2023.

DEPUTY PRESIDENT

[1]  [2010] FWAA 5384.

[2] Ibid.

[3] Digital Court Book P24.

Printed by authority of the Commonwealth Government Printer

<AE879242  PR761401>