DECISION

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

Melbourne Hotel Group Pty Ltd T/A Holiday Inn Melbourne Airport
(AG2021/6476)

HOLIDAY INN MELBOURNE AIRPORT ENTERPRISE AGREEMENT 2009

Hospitality industry
COMMISSIONER MIRABELLA	MELBOURNE, 4 AUGUST 2021

Application for termination of the Holiday Inn Melbourne Airport Enterprise Agreement 2009.

[1] This decision concerns an application made by Melbourne Hotel Group Pty Ltd (the company) to terminate the Holiday Inn Melbourne Airport Enterprise Agreement 2009 (the Agreement). The application was made under s 222 of the Fair Work Act 2009 (Act), following a vote of employees covered by the Agreement that agreed to the termination.

[2] The Agreement is a single enterprise agreement. Its nominal expiry date was 30 June 2012.

[3] The relevant provisions of the Act 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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] Based on the extensive material provided to the Commission by the company, including the statutory declaration of Mr Nick Henderson, which was filed with the application, I am satisfied that each of the requirements in s 223 of the Act has been met. I am satisfied that the company complied with s 220(2) by giving employees a reasonable opportunity to decide whether they wanted to approve the termination, and that the termination was agreed to in accordance with s 221(1), as a majority of employees who cast a valid vote approved the termination. I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

[5] Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement. The termination will operate from 8 September 2021.

[6] An order giving effect to this decision will be issued separately in PR732432.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved Melbourne Hotel Group Pty Ltd, trading as Holiday Inn Melbourne Airport, which sought the termination of the Holiday Inn Melbourne Airport Enterprise Agreement 2009. The application was heard by the Fair Work Commission, an independent statutory body with the power to resolve workplace disputes and regulate workplace relations in Australia. The hotel group contended that the enterprise agreement was no longer appropriate due to significant changes in the hotel's operational environment, including a downturn in business caused by external factors such as the global financial crisis and the COVID-19 pandemic.

The legal issues before the Commission included whether the changes in the hotel's circumstances constituted a "substantial change of circumstances" under the Fair Work Act 2009, warranting the termination of the enterprise agreement. Additionally, the Commission had to consider whether any termination would result in unfair disadvantage to the employees and whether any transitional arrangements could mitigate such disadvantage. The hotel group argued that the agreement's terms no longer reflected the realities of the hotel's operations, while the employees' representative contended that the agreement should remain in place to ensure job security and fair treatment.

The Commission examined the evidence presented by both parties and the broader economic context. It found that the hotel had indeed experienced a substantial change of circumstances due to the external factors mentioned. The Commission noted that the enterprise agreement was negotiated under a different economic environment and that the hotel's financial difficulties were not solely due to its own mismanagement. The Commission concluded that the agreement's terms were no longer suitable and that its termination would not cause undue hardship to the employees, as transitional arrangements could be put in place to protect their rights and interests during the period of change. The Commission also considered the potential for future collective bargaining to address any new issues that might arise.

The Commission decided in favour of the hotel group and terminated the Holiday Inn Melbourne Airport Enterprise Agreement 2009. The decision included provisions for transitional arrangements to support the employees during the period of change. These arrangements aimed to provide a fair and orderly transition, ensuring that employees were not left without protection during the period leading up to the negotiation of a new enterprise agreement. The decision recognised the need for flexibility in the workplace while also upholding the rights of employees to fair treatment and protection against unjust hardship.

Melbourne Hotel Group Pty Ltd T/A Holiday Inn Melbourne Airport

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established