Hindmarsh Square Hospitality Pty Ltd T/A Pullman Adelaide

[2023] FWCA 181

[2023] FWCA 181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Hindmarsh Square Hospitality Pty Ltd T/A Pullman Adelaide

(AG2022/5597)

CROWNE PLAZA ADELAIDE ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
COMMISSIONER PLATT	ADELAIDE, 19 JANUARY 2023

Application for termination of the Crowne Plaza Adelaide Enterprise Agreement 2011-2012

1. On 29 December 2022, Hindmarsh Square Hospitality Pty Ltd T/A Pullman Adelaide made an application for the termination of the Crowne Plaza Adelaide Enterprise Agreement 2011-2012 (the Agreement), an enterprise agreement that had passed its nominal expiry date, pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

1. Sections 222 and 223 of the Act are relevant to this application and are as follows:

222 Application for the FWC's 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 the 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 the FWC considers it fair to extend that period--within such further period as the 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 Application was made within the timeframe required.

1. Attached to the application was a statutory declaration of Mr Llewellyn Wyeth, General Manager, which is relevantly summarised as follows:

·   The Agreement passed its nominal expiry date on 31 December 2012.  

·   An employee consultation process took place between 22 November 2022 and 12 December 2022. The Applicant held a group consultation session where employees were informed of the Applicant’s proposal to terminate the Agreement and a comparison was made between the employee’s conditions under the Agreement and the Hospitality Industrial General Award 2020 (the Award). Further information was sent to all employees by email following the group consultation session. Copies of the communication provided to the employees were attached to the application.

·   Each employee was also provided an “individual impact letter”, which outlined the effect that the proposed termination would have on them.

·   Employees were provided with the opportunity to have individual consultation sessions and ask questions about the proposed termination.

·   The Director of Talent & Culture for the Applicant held two meetings with the United Workers’ Union (UWU), a party to the Agreement, to discuss the proposal to terminate the Agreement.

·   Employees covered by the Agreement were provided with an opportunity to attend a paid mass meeting to be held with the UWU to discuss the proposal to terminate.

·   A ballot was conducted from 15 December 2022 until 16 December 2022. Of the 87 employees covered by the Agreement, 70 employees cast a valid vote, and 57 employees voted to approve the termination.

1. I am satisfied that the employer complied with subsection 220(2) of the Act by giving the affected employees a reasonable opportunity to decide whether they wanted to approve the proposed termination. There are no other reasonable grounds for believing that the employees have not agreed to the termination.

1. On 3 January 2023, I issued directions requiring the application and supporting documents be served on all employees and employee organisations covered by the Agreement, so that I could seek their views in accordance with s.223(d) of the Act. The employees and employee organisations were advised to contact my Chambers if they wished to express any views.

1. No employees covered by the Agreement contacted my Chambers. The UWU contacted my Chambers on 18 January 2023 confirming that they did not wish to express any views.

1. I have considered and am satisfied that each of the requirements contained in ss.222 and 223 of the Act have been met. I consider that it is appropriate to terminate the Agreement.

1. The termination will come into effect from the date of this Decision.

COMMISSIONER

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