Martin Heritage Management Pty Ltd ATF Far East Martin Trust T/A The Fullerton Hotel Sydney

[2020] FWCA 4881

[2020] FWCA 4881

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225—Enterprise agreement

Martin Heritage Management Pty Ltd ATF Far East Martin Trust T/A The Fullerton Hotel Sydney
(AG2020/2347)

THE WESTIN SYDNEY ENTERPRISE AGREEMENT 2009

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 28 SEPTEMBER 2020

Application for termination of the The Westin Sydney Enterprise Agreement 2009 – views of the parties considered – termination of Agreement not contrary to the public interest.

[1] This is an application, filed on 10 August 2020, by Martin Heritage Management Pty Ltd ATF Far East Martin Trust t/a The Fullerton Hotel Sydney (the ‘applicant’) pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of The Westin Sydney Enterprise Agreement 2009 [AE873754] (the ‘Agreement’). The Agreement covers 30 of the applicant’s employees and passed its nominal expiry date on 30 September 2012.

[2] The provisions of the Act governing applications of this kind, 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), Mr Mark Burns, General Manager of the applicant, stated that the agreement is more than 10 years old and contains a number of terms less beneficial than the Hospitality Industry (General) Award 2020 (the ‘Award’).

[4] Mr Burns noted that the Agreement provides a higher entitlement long service leave than under the Long Service Leave Act 1955 (NSW). He stated that all but two of the 30 employees still covered by the Agreement have completed 10 years’ continuous service and he undertook that the remaining two employees will have the benefit of the more beneficial long service leave provisions under clause 21 of the Agreement.

[5] Mr Burns further stated that the employees had been surveyed on the termination of the Agreement. Of the 30 employees, one employee did not vote, and one employee opposed the termination. The remaining employees did not express opposition to the termination of the Agreement.

[6] The application (Form F24B) recognised the United Workers’ Union (‘UWU’) as an employee organisation covered by the Agreement. On 18 August 2020, my Chambers sent the following email to the UWU:

‘Dear Sir/Madam,

I refer to the attached s 225 application made by Martin Heritage Management Pty Ltd ATF Far East Martin Trust T/A The Fullerton Hotel Sydney, which lists your Union as being covered by the agreement which is sought to be terminated. His Honour seeks the Union’s views on this application, and whether it does or does not consent to the agreement being terminated. Please do so by no later than close of business Friday 28 August 2020.

Kind regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM’

[7] As no response was received, my Chambers sent the following subsequent email to the UWU on 11 September 2020:

‘Dear Sir/Madam,

I refer to my below email and note that no response has yet been received by the Union. Please respond at your earliest convenience.

Kind regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM’

[8] The UWU responded with the following email on 15 September 2020:

‘Dear Associate

The Union consents to the termination of the agreement. However we note the employer intends to provide undertakings in regards to the long service leave provisions. Accordingly we reserve the right to seek amendments to those undertakings should we see fit.

Regards

Melinda Bolton

Industrial Officer

United Workers Union’

[9] Having considered the application, the accompanying statutory declaration, the views of the parties and the terms of the Agreement, 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. I note the undertaking of the applicant at [4] above.

[10] Accordingly, the of The Westin Sydney Enterprise Agreement 2009 is terminated. Pursuant to s 227 of the Act and by consent, the termination is to take effect on and from 28 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE873754  PR722704>