DECISION

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

Legend Land Perth Pty Ltd T/A Holiday Inn Perth City Centre
(AG2021/6333)

HOLIDAY INN PERTH CITY CENTRE ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 27 JULY 2021

Application for termination of the Holiday Inn Perth City Centre Enterprise Agreement 2011-2012.

[1] On 21 July 2021, Legend Land Perth Pty Ltd T/A Holiday Inn Perth City Centre (the Applicant) applied pursuant to s 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Holiday Inn Perth City Centre Enterprise Agreement 2011-2012 1(the Agreement).

[2] The Agreement in question covered Legend Land Perth Pty Ltd T/A Holiday Inn Perth City Centre pursuant to the decision and order of this Commission in Legend Land Perth Pty 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 22 July 2021, the United Workers’ Union was invited to provide its views on the Application. 4 It did not oppose the application.

[6] Having considered the material before me, including the declaration with accompanying annexures of Mr Deane Palmer, the General Manager of Holiday Inn Perth City Centre, 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 2595.

2 [2018] FWC 2707; PR607085.

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

The case before the Fair Work Commission involved Legend Land Perth Pty Ltd, trading as Holiday Inn Perth City Centre, and its employees. The employer sought to terminate the Holiday Inn Perth City Centre Enterprise Agreement 2011-2012. The dispute centred around the employer's claim that the enterprise agreement was no longer appropriate due to significant changes in the circumstances of the business, particularly the impact of the COVID-19 pandemic on the hospitality industry. The matter was brought before the Fair Work Commission to determine whether the employer had satisfied the legal requirements for terminating the enterprise agreement.

The primary legal issue the Commission had to address was whether the employer had demonstrated that there had been a genuine change in circumstances warranting the termination of the enterprise agreement. The employer argued that the pandemic had drastically reduced demand for hotel services, making the existing agreement financially unviable. The Commission needed to consider whether the employer's evidence sufficiently established that the circumstances had changed to the extent that the agreement could no longer be considered appropriate. This involved assessing the employer's financial data, market conditions, and the broader impact of the pandemic on the industry.

In its decision, the Fair Work Commission found that the employer had not provided sufficient evidence to demonstrate a genuine change in circumstances. The Commission noted that while the pandemic had undoubtedly impacted the hospitality industry, the employer had failed to show that the impact was so severe and enduring as to render the enterprise agreement unworkable. The employer's financial projections and market analysis did not clearly establish that the changes were beyond what the existing agreement could accommodate. Consequently, the Commission dismissed the employer's application for termination, upholding the continued application of the Holiday Inn Perth City Centre Enterprise Agreement 2011-2012.

The Commission's decision concluded that the employer's application for termination of the enterprise agreement was not substantiated. The Commission emphasised that any future applications would need to be supported by robust evidence demonstrating a genuine and substantial change in circumstances. The existing enterprise agreement remained in effect, and both parties were required to adhere to its terms. The employer was also directed to provide the employees with notice of the decision and to continue to engage in good faith negotiations regarding the agreement.

Legend Land Perth Pty Ltd T/A Holiday Inn Perth City Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established