Ovolo Woolloomooloo Wharf Pty Ltd t/as Blue Hotel

[2015] FWCA 7364

[2015] FWCA 7364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 225 - Application for termination of an enterprise agreement after its nominal expiry date

Ovolo Woolloomooloo Wharf Pty Ltd t/as Blue Hotel
(AG2015/5221)

BLUE, SYDNEY ENTERPRISE AGREEMENT 2011-2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 OCTOBER 2015

Application for termination of the BLUE, Sydney Enterprise Agreement 2011-2013.

[1] This is an application, filed by Ovolo Woolloomooloo Wharf Pty Ltd t/as Blue Hotel (the ‘applicant’) pursuant to s 225 of the Fair Work Act 2009 (the ‘Act’), which seeks the termination of the BLUE, Sydney Enterprise Agreement 2011-2013. Relevantly, the Agreement passed its nominal expiry date on 31 December 2013 and covers 21 employees at the applicant’s hotel in Woolloomooloo, New South Wales. It is proposed that the employment conditions of the relevant employees be covered by the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’).

[2] The relevant provisions of the Act governing this application 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 supporting the termination of the Agreement (Form F24C), Ms J Law, HR Manager, submitted that the terms and conditions under the Award were considerably more favourable than those under the Agreement and that it would not be contrary to the public interest that the Agreement be terminated. Ms Law annexed to her declaration a copy of a comparative document circulated to employees dated 26 August 2015. This document set out that under the Award, employees would receive higher base rates of pay, weekend penalty rates not provided for in the Agreement and increases to rates of pay in accordance with the Commission’s annual Minimum Wage Review Decision. In a secret ballot conducted between 7 and 11 September 2015, 13 of the 14 employees who cast a valid vote, agreed with the applicant’s proposal to terminate the Agreement.

[4] Having considered the application, the accompanying statutory declaration and the Agreement itself, 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. Accordingly, BLUE, Sydney Enterprise Agreement 2011-2013 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on and from 30 October 2015.

DEPUTY PRESIDENT

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