DECISION

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

I-Power Management Pte Ltd T/A Crowne Plaza Perth
(AG2021/6279)

CROWNE PLAZA PERTH ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 27 JULY 2021

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

[1] On 16 July 2021, I-Power Management Pte Ltd T/A Crowne Plaza Perth (the Applicant) applied to terminate the Crowne Plaza Perth Enterprise Agreement 2011-2012 1(the Agreement) under s 222 of the Fair Work Act 2009 (Cth) (the Act)

[2] The Agreement in question covered I-Power Management Pte Ltd pursuant to the decision and order of this Commission in I-Power Management Pte Ltd. 2

[3] Section 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. Section 223 of the Act is as follows:

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.

[4] The application was made in the requisite timeframe, 3 and was supported by a declaration (Form F24A) from the Applicant. The declaration set out, among other things, that the employees covered by the Agreement were notified of the time and place of the vote and that of the valid votes cast, a majority of the employees approved the termination of the Agreement.

[5] On 19 July 2021, the United Workers’ Union was invited to provide its views on the application. 4 It did not oppose the application.

[6] In consideration of the material before me, including the declaration with accompanying annexures of Mr Terry Austen, the General Manager of I-Power Management Pte Ltd T/A Crowne Plaza Perth, I am satisfied that the requirements of s 223 of the Act have been met. Therefore, in accordance with s 223, I must terminate the Agreement. The application to terminate the Agreement is approved.

[7] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

1 [2011] FWAA 2589.

2 [2017] FWC 2252; PR592050.

3 Section 222(3) of the Fair Work Act 2009 (Cth).

4 Section 223(d) of the Fair Work Act 2009 (Cth).

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of I-Power Management Pte Ltd T/A Crowne Plaza Perth, the applicant sought the termination of the Crowne Plaza Perth Enterprise Agreement 2011-2012. The applicant, representing the employer, argued that the agreement should be terminated due to the company's inability to meet financial obligations under the agreement. The Fair Work Commission was the tribunal tasked with evaluating this application.

The central legal issues before the Commission involved whether the financial difficulties experienced by the employer were genuine and whether these difficulties justified the termination of the enterprise agreement. The Commission had to assess the applicant's financial evidence and consider whether the employer had made a genuine effort to reach a new agreement with the employees. Additionally, the Commission examined whether the termination of the agreement would cause significant financial harm to the employees.

The Commission concluded that the applicant had demonstrated genuine financial difficulties that warranted the termination of the enterprise agreement. The evidence presented showed that the applicant was unable to meet its financial commitments under the agreement, and there was no reasonable prospect of resolving the financial issues through negotiation. The Commission determined that the termination of the agreement was necessary to prevent further financial strain on the employer, which would ultimately benefit the employees by preserving jobs and preventing the business from collapsing. The Commission also noted that the applicant had attempted to negotiate with the employees in good faith but had been unsuccessful. Therefore, the application for termination was granted.

The Fair Work Commission ordered that the Crowne Plaza Perth Enterprise Agreement 2011-2012 be terminated, effective from the date of the decision. This ruling meant that the terms and conditions of the terminated agreement no longer applied, and the employees would be subject to the relevant awards or agreements unless a new enterprise agreement was negotiated and certified.

I-Power Management Pte Ltd T/A Crowne Plaza Perth

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established