Prime Value Asset Management Limited as Trustee for the Shakespeare Cairns Hospitality Business Trust T/A Pullman Cairns International
[2022] FWCA 3133
•16 SEPTEMBER 2022
| [2022] FWCA 3133 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Prime Value Asset Management Limited as Trustee for the Shakespeare Cairns Hospitality Business Trust T/A Pullman Cairns International
(AG2022/3494)
The Sebel Cairns Enterprise Agreement 2011
| Hospitality industry | |
| DEPUTY PRESIDENT LAKE | BRISBANE, 16 SEPTEMBER 2022 |
Application for termination of the The Sebel Cairns Enterprise Agreement 2011 - agreement terminated.
On 19 August 2022, Prime Value Asset Management Limited as trustee for the Shakespeare Cairns Hospitality Business Trust T/A Pullman Cairns International (the Applicant) lodged an application to the Fair Work Commission (the Commission) pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the The Sebel Cairns Enterprise Agreement 2011 (the Agreement), which is a single enterprise agreement with a nominal expiry date of 31 March 2014.
The Applicant filed a Form F24 and Form F24A, which provides that the Applicant is the only company covered by the Agreement that employs individuals. The Applicant submitted that the acquisition of the Mirvac Hotels and Resorts portfolio changed the name of the legal entity to Accor Australia & New Zealand Hospitality Pty Ltd. Following the change of the company name, the trading name of the hotel also changed from The Sebel Cairns to Pullman Cairns International.
On or about 3 February 2020, the Applicant purchased certain assets relating to Pullman Cairns International from the Accor Australia & New Zealand Hospitality Pty Ltd resulting in a transfer of business for the purposes of s.311 of the Act.
The Applicant has 76 employees that are covered by the Agreement. Existing employees of the prior employer were offered, and accepted, employment with the Applicant in comparable positions and on terms and conditions of employment which were substantially similar to, and no less favourable than, their employment with the prior employer. The work which the transferring employees would perform was the same, or substantially similar the same, as the work that they performed for the prior employer.
There are no unions covered by the Agreement.
Consultation with staff
The Applicant’s Portfolio Director of Talent and Culture, Bernadette Reynolds, provided evidence that from at least July 2022 several employees have requested that the Agreement be terminated.
On 12 July 2022, Ms Reynolds sent an email to all employees covered by the Agreement with a notification letter advising them of the proposal to terminate the Agreement and provided the dates and times of group consultation sessions to be held.
Between 19 July 2022 to 21 July 2022, Ms Reynolds held group consultation sessions for employees who would be covered by the Hospitality Industry General Award 2020 (HIGA) and employees who would be covered by the Hair and Beauty Industry Award 2020 (HBIA).
On 22 July 2022, Ms Reynolds sent each employee who attended and did not attend consultation meetings a copy of the PowerPoint presentation applicable to the employee and a copy of the applicable comparative table (either the Agreement to HIGA or the Agreement to HBIA).
Between 22 July 2022 to 27 July 2022, employees were each sent a letter outlining the individual impact on the employee specific to their situation including a rate comparison. Ms Reynolds also attended departmental briefings to remind employees to arrange individual consultation meetings as required.
Between 22 July 2022 to 3 August 2022, individual consultation sessions were held with each employee who requested an individual consultation.
On 27 July 2022, a ballot information email was sent to all employees. The email provided the following information to employees:
a) the ballot would open on 3 August 2022 and close at midnight on 6 August 2022,
b) the ballot conductor would be a third-party company, GoVote Pty Ltd;
c) the ballot would occur online and by SMS;
d) instructions on how to vote would be sent via email and SMS to employees when the voting period commenced by the ballot conductor;
e) ballots cast will be anonymous;
f) that if an employee was unable to vote during this period, they must contact Ms Reynolds by 1 August 2022 to arrange an alternative time to vote;
g) once the ballot is finished, the ballot conductor will tally the votes and provide the results to the Applicant; and
h) if a majority of employees who cast a valid ballot, vote in favour of termination of the Agreement, the Applicant will file the necessary documentation to the Commission to apply to terminate the Agreement.
GoVote Pty Ltd supplied a Ballot Management Plan to Ms Reynolds.
On 1 August 2022, GoVote Pty Ltd sent a ballot notification email and SMS to all employees.
On 3 August 2022, the ballot opened. GoVote Pty Ltd sent all employees an email and SMS with instructions on how to vote.
On 6 August 2022, the ballot closed. Of the Applicant’s 76 employees, 67 casted a valid vote and, of those, 52 approved the termination.
On 8 August 2022, a report of the results from the ballot were sent to all employees.
Consideration
Section 222 of the Act provides that if a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the Commission for approval of the termination, within 14 days (or a further period allowed by the Commission). The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
Section 223 of the Act goes on to provide that the FWC must approve a termination of an enterprise agreement 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.”
Section 224 of the Act confirms that, if a termination is approved under s.223, the termination comes into operation from the date specified in the decision which terminates the Agreement.
Based on the material contained in the declaration filed with the application and the documentation provided, I am satisfied the Applicant has made the application within 14 days of the termination being agreed upon by a majority of its employees, after a period of communication and consultation regarding the effects the termination would have on their employment entitlements. Taking into account all of the circumstances including those in ss.222 and 223, I consider that it is appropriate to terminate the Agreement.
Accordingly, I order that the Agreement be terminated and the termination will operate from 11.59 pm on 20 September 2022 with 21 September 2022 being the first day that the applicable modern awards will apply.
DEPUTY PRESIDENT
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