Mulpha Hotel Operations Pty Limited

[2012] FWA 7128

[2012] FWA 7128

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 319 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Mulpha Hotel Operations Pty Limited
(AG2012/10390)

DEPUTY PRESIDENT SAMS SYDNEY, 22 AUGUST 2012

Application for an order relating to instruments covering a new employer.

[1] This is an expanded decision following an ex tempore decision given by me on 20 August 2012 in respect to an application by Mulpha Hotel Operations Pty Ltd (‘the applicant’) for an order pursuant to s 319 of the Fair Work Act 2009 (‘the Act’). The order sought is as follows:

‘That the Inter Continental Sydney Enterprise Agreement 2011-2012 AE885377 (‘the Agreement’) shall apply to the applicant and cover new non-transferring employees employed by the applicant who are engaged, in or in connection with, the performance of duties and tasks comprehended by the classifications described in Appendix A to the Agreement after the transfer of business from Mulpha Hotel Pty Ltd ACN070 662 627.’

[2] At a hearing of the application on 20 August 2012, Mr P Frazer (Solicitor) appearing for the applicant, relied on the affidavit of Mr Allan Renkema, General Manager, Human Resources, which provided the following background to the application.

‘The applicant, Mulpha Hotel Operations Pty Limited ACN 155 176 is subsidiary of Mulpha Australia Limited. It was registered on 17 January 2012.

Mulpha Hotel Pty Limited ACN 070 662 627 (Mulpha Hotel) is also a subsidiary of Mulpha Australia. The applicant, Mulpha Australia and Mulpha Hotel have common directors. They are related body corporate for the purposes of section 9 of the Corporations Act 2001.

Mulpha Hotel currently leases the InterContinental Hotel Sydney (the Hotel) from the owner of the Hotel (the owner of the Hotel is a subsidiary of Mulpha Australia). Mulpha Hotel is the employer of the employees who work at the Hotel. It is the employer named and bound by the Enterprise Agreement. In the absence of the Enterprise Agreement the Hospitality Industry (General) Award 2010 MA000009 would apply.

For internal Mulpha Australia purposes it is proposed that the business and assets of the Hotel will be transferred to the applicant, a related body corporate of Mulpha Hotel. Those internal purposes, as I understand it and believe, relate to the desire of Mulpha to have separate legal entities own some of the individual businesses. In this case the business of Hayman Island will remain with Mulpha Hotel, and the business of the InterContinental Sydney is intended to be transferred to the Applicant.

I am informed by the current CFO of Mulpha Australia Mr Greg Dyer, and believe, that the business and operations of the InterContinental Sydney are valuable and profitable.

It is proposed that the applicant, Mulpha Operations, will become the employer of employees of the Hotel at which time it will recognise all accrued service and entitlements. Subject to completion of the transaction, those employees will be offered employment on the same terms and conditions that they currently enjoy.

Mulpha Australia has a significant desire to maintain the same terms and conditions for all of the employees of Mulpha Australia engaged in the Hotel. An average of 15 new employees per month are engaged to work for the Hotel who would fall within the classifications set out in the Enterprise Agreement. In the absence of the orders sought under section 319, I am advised by our legal representatives Bell Partners Legal that such new non transferring employees performing the ‘transferring work’ would not be covered by the Enterprise Agreement.’

[3] Various relevant business records and other documentary material was annexed to Mr Renkema’s affidavit. Mr Frazer also relied on email exchanges with United Voice, the Union which is covered by the Agreement, in which the Union expresses support for the application.

Relevant Statutory Provisions

[4] Sn 319 (3) of the Act sets out the matters which FWA must take into account in deciding whether to make the order. These are:

‘(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.’

[5] Mr Frazer addressed the Tribunal on each of the above criteria and I have taken the following matters into account in that respect:

a)

(i) the applicant is anxious to have this application approved for the reasons outlined in Mr Renkema’s affidavit as follows:

‘I feel the benefits of maintaining the Enterprise Agreement for new non transferring employees include:

• one set of employment terms and conditions allowing effective management of all employees, including hours of work and rostering, rates of pay, allowances, leave entitlements including paid parental leave;

• single rostering and payroll systems;

• perceived equality and fairness of employment conditions for current and new employees who could be potentially employed under different conditions.

• the encouragement of employing new staff on a permanent, as distinct from casual, basis.’

(ii) While there are no existing employees affected by the order, I note the support of the relevant Union, which is covered by the Agreement;

b) no future employee will be disadvantaged in respect to their terms and conditions of employment and, in fact, will receive the benefits and conditions of a recently negotiated and approved enterprise agreement;

c) the nominal expiry date of the Agreement is 31 December 2012;

d) there will be no negative impact on the productivity of the applicant’s workplace, in fact the impact will be positive;

e) there will be no economic disadvantage as a result of the Agreement covering the new employer;

f) there is an obvious business and industry synergy between the Agreement and any workplace instrument which might cover the new employer, such as the relevant modern award;

g) there is a real and genuine public interest in FWA approving this application.

[6] I am satisfied that all of the statutory requirements of the Act, in so far as relevant to this application, have been met. Accordingly, I confirm my decision of 20 August 2012 to make the order as sought in paragraph 1 above. The order shall take effect on and from 20 August 2012 and will be published as a separate order to this decision.

DEPUTY PRESIDENT

Appearances:

Mr P Frazer, Solicitor for the applicant

Hearing details:

2012
SYDNEY
August 20

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