Palmer Coolum Resort Pty Ltd T/A Hyatt Regency Coolum

[2015] FWCA 5004

[2015] FWCA 5004

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Palmer Coolum Resort Pty Ltd T/A Hyatt Regency Coolum
(AG2015/3648)

HYATT REGENCY COOLUM THE SPA COLLECTIVE AGREEMENT 2008

Hospitality industry
COMMISSIONER SPENCER	BRISBANE, 23 JULY 2015

Application for termination of the Hyatt Regency Coolum The Spa Collective Agreement 2008.

[1] Palmer Coolum Resort Pty Ltd T/A Hyatt Regency Coolum (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the Hyatt Regency Coolum The Spa Collective Agreement 2008 1 (the Agreement).

[2] Item 16 of Schedule 3 of the Transitional Act provides that:

Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] Accordingly, the Commission must be satisfied that the requirements in s.225 and s.226 of the Act are met prior to approving the termination of the Agreement.

[4] Section 225 of the Act provides 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 employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

[5] The nominal expiry date, as per clause 1.2 of the Agreement, is five years after the Agreement commences to operate after the approval of the Agreement by the Workplace Authority. The nominal expiry date as stated in the application was 2013. The Agreement has passed its nominal expiry date. The Applicant is the employer covered by the Agreement (Hyatt Regency Coolum).

[6] Section 226 of the Act provides as follows:

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 if:

(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.

[7] In response to the application to terminate the Agreement, Directions were issued for the filing of material in reference to s.226 of the Act (set out above).

[8] The Applicant filed materials in accordance with these Directions.

Consideration

[9] The Applicant provided a letter signed by the HR & Development Advisor, Ms Laura Delaney, on letterhead, confirming as follows:

“1. The company, The Spa, as previously operated at the Hyatt Regency Coolum closed in January 2015.
2. Since that time there has been no employees employed under the abovementioned agreement.”

s.226(b)(i) - the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

[10] The Applicant is of the view that the Agreement should be terminated. As the Applicant stated that there were currently no employees employed under the Agreement, there are no views of employees who will be affected by the termination that are able to be obtained. There are no employee organisations covered by the Agreement.

s.226(b)(ii) - the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

[11] The Applicant is seeking to terminate an agreement that is no longer covering any of the Applicant’s current employees, and therefore, the termination will not have an effect on any employees.

s.226(a) - the FWC is satisfied that it is not contrary to the public interest to do so

[12] The Applicant did not raise any issues in relation to public interest. Given there are no employees covered by the Agreement at this time, it would not be contrary to the public interest to terminate the Agreement.

Conclusion

[13] The Commission is satisfied that an application for the termination of an agreement has been made for an agreement that has passed its nominal expiry date. The Commission is further satisfied that the Applicant is a person able to make an application pursuant to s.225(a) of the Act.

[14] On the material provided, in relation to the circumstances and the views of the relevant parties, it is not contrary to the public interest to order the termination of the Agreement. There are no employees who will be affected.

[15] The application was listed for hearing as a protective measure for any interested party.

[16] The Commission is satisfied that it is appropriate to terminate the Agreement in all the circumstances having considered the views and circumstances of the Applicant.

[17] Taking into account all of the material and the legislative tests in s.225 and s.226 of the Act, the Agreement is to be terminated.

[18] The termination will operate from the date of this decision.

[19] I Order accordingly.

COMMISSIONER

 1 AC319572.

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<Price code A, AC319572  PR569711>