Laudet Pty Limited t/as Rydges Sydney Central

[2016] FWCA 1693

[2016] FWCA 1693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Laudet Pty Limited t/as Rydges Sydney Central
(AG2016/508)

SEBEL SURRY HILLS SYDNEY EMPLOYEE COLLECTIVE AGREEMENT 2009

Restaurants
DEPUTY PRESIDENT SAMS	SYDNEY, 18 MARCH 2016

Application for termination of the Sebel Surry Hills Sydney Employee Collective Agreement 2009.

[1] This is an application, filed by Laudet Pty Limited t/as Rydges Sydney Central (the ‘applicant’) pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the Sebel Surry Hills Sydney Employee Collective Agreement 2009 (the ‘Agreement’). Relevantly, the Agreement passed its nominal expiry date on 10 January 2015. The Agreement covers 63 employees at a hotel managed by the applicant in Sydney, New South Wales. It is proposed that the employment conditions of the relevant employees be covered by the Hospitality Industry General Award 2010 [MA000009] (the ‘Award’).

[2] The relevant provisions of the Act governing this application are set out 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 employees covered by the agreement;

(b) an employee covered by the agreement

(c) an employee organisation covered by the agreement

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 is:

(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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[3] In a statutory declaration accompanying the application (Form F24C), Ms S McFarland, Financial Controller, put that the terms and conditions of the Award were considerably more favourable than those under the expired collective agreement. Terminating the Agreement would not be contrary to the public interest and would be consistent with the preference of the employer and the relevant employees. Ms McFarland explained that employees had been invited to participate in an online survey between 27 October and 25 November 2015. Although only six employees provided a response, they indicated their support for the termination of the Agreement.

[4] In a hearing of the application on 17 March 2016, Mr S Morrissey of the Australian Hotels Association appeared for the applicant. Mr Morrissey submitted that all of the applicable statutory requirements for the termination of an expired agreement had been met and that the Agreement should be terminated. He explained that the application arose following the transfer in the management of the hotel and the transfer of business provisions in the Act. While Mr Morrissey acknowledged that the response to the applicant’s survey was low, he emphasised that there had been no formal or informal objections made by any employee as to the termination of the Agreement after this was communicated to the employees.

[5] Having considered the application, the accompanying statutory declaration and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular, ss 225, 226 and 227 of the Act, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Given that the affected employees will be better off under the Award than the Agreement, I am comfortably satisfied that they would have no opposition to the termination of the agreement. Accordingly, the Sebel Surry Hills Sydney Employee Collective Agreement 2009 is terminated. Pursuant to s 227 of the Act and the request of the applicant, the termination is to take effect on and from 6 April 2016.

DEPUTY PRESIDENT

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