Noosa Pacific Hotel Pty Ltd T/A Sofitel Noosa Pacific Resort

[2016] FWCA 4722

[2016] FWCA 4722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Noosa Pacific Hotel Pty Ltd T/A Sofitel Noosa Pacific Resort
(AG2016/3796)

SHERATON NOOSA RESORT & SPA ENTERPRISE AGREEMENT 2015

Hospitality industry
COMMISSIONER SPENCER	BRISBANE, 15 JULY 2016

Application for variation of the Sheraton Noosa Resort & Spa Enterprise Agreement 2015.

[1] This decision is in relation to an application made under s.217 of the Fair Work Act 2009 (the Act) by Noosa Pacific Hotel Pty Ltd T/A Sofitel Noosa Pacific Resort (the employer) to vary the Sheraton Noosa Resort & Spa Enterprise Agreement 2015 (the Agreement) in order to remove an ambiguity or uncertainty.

[2] The employer submits that an ambiguity or uncertainty has arisen in relation to the Agreement following a change in its trading name from “Sheraton Noosa Resort & Spa” to “Sofitel Noosa Pacific Resort”. The change in the trading name occurred on 13 June 2016.

[3] The employer submits that the name of the Enterprise Agreement now no longer reflects the correct name of the employer and that this is causing confusion, particularly with employees employed on or after 13 June 2016.

[4] In order to remove the ambiguity or uncertainty the employer requests that all references to the previous name be amended to reflect the employer’s new name. The employer submitted a proposed replacement Agreement with following changes:

a) The title of the Agreement found on the cover page is amended from “Sheraton Noosa Resort & Spa Enterprise Agreement 2015” to “Noosa Pacific Hotel Pty Ltd Enterprise Agreement 2015”.

b) The table of contents of the Agreement is amended to reflect the change of name to “Noosa Pacific Hotel Pty Ltd Enterprise Agreement 2015” and is updated to reflect the below amendments and the correct corresponding page numbers.

c) The definition of “Hotel” contained in clause 3 Definitions of the Agreement is amended to read “Hotel” means the property located at 14-16 Hastings Street, Noosa Heads in the State of Queensland.

d) The definitions “Starwood” and “Starwood locations” contained in clause 3 Definitions of the Agreement are deleted.

e) Clause 6.1.1 of the Agreement is amended to remove the wording “Sheraton Noosa Resort & Spa” and replaced with the word “Hotel” and amended to remove the words “Starwood Hotels in the Pacific” and replaced with the words “hotels and resorts in the Sunshine Coast”.

f) Clause 7.2.1 of the Agreement is amended to delete the words “any Starwood location in the Noosa area” and replaced with the words “the Hotel”.

g) Clause 7.2.2 of the Agreement is amended to remove the word “Starwood” and replaced with the words “the Company”.

h) Clause 7.2.4 (a) of the Agreement is deleted.

i) Amend clause 7.2.4 (b) of the Agreement to read as new clause 7.2.4 (a) and in this clause remove the words “Sheraton Noosa” and replace with the words “The Hotel”.

j) Clause 7.6 of the Agreement is deleted.

k) Clause 7.7 of the Agreement is deleted.

l) Amend clause number 7.8 of the Agreement to reflect new clause numbering to clause 7.6.

m) Amend clause 7.8.2 iii (new clause number 7.6.2 iii) of the Agreement to remove the words “clause 1.9 (Continuity of Delivery of Services and)” and replace with the correct title reference “clause 9 (Dispute Resolution)”.

n) Amend clause 11.1.1 (b) of the Agreement on the first line to add the word “Departments” and remove the colon and replace with a full stop so as to read “encouraging the flexible allocation of work between Departments.”.

o) Delete clause 11.1.1(b)(i) and (ii) of the Agreement.

p) Amend clause 12.1.2(b)(vi) to remove the word “Sheraton” and replace with the words “the Company’s”.

q) Amend clause 13.6.1 of the Agreement to remove the words “or at another Starwood location in the Noosa area”.

r) Amend the signature pages of the Agreement to remove the words “Trading as Sheraton Noosa Resort & Spa”.

s) Amend Appendix 2, clause 1 to remove the words “Sheraton Resort and Spa” and replace with the words “the Hotel”.

[5] The submissions of the Applicant are supported by correspondence from Mr Simon Ong, Industrial Officer with United Voice, confirming that United Voice was consulted in relation to the application, and the United Voice considers the variation is necessary to ensure continued clarity to workers who are engaged by the Applicant, and on that basis, United Voice consented to the application in the terms sought.

[6] Section 217 of the Act relevantly provides as follows:

217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) FWA may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.

(2) If FWA varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[7] On the basis of the material before me, I am satisfied that there is an ambiguity or uncertainty regarding the name of the employer and that the application to remove the ambiguity or uncertainty has been made in accordance with s.217 of the Act.

[8] Accordingly the application is granted and the variation will operate from today, 15 July 2016. The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

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