Priscilla David Limited T/A Holiday Inn Melbourne on Flinders

[2021] FWCA 5494

[2021] FWCA 5494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Priscilla David Limited T/A Holiday Inn Melbourne on Flinders
(AG2021/6952)

HOLIDAY INN MELBOURNE ON FLINDERS ENTERPRISE AGREEMENT 2011-2012

Hospitality Industry
DEPUTY PRESIDENT CLANCY	MELBOURNE, 3 SEPTEMBER 2021

Application for termination of the Holiday Inn Melbourne on Flinders Enterprise Agreement 2011-2012.

[1] On 27 August 2021, Priscilla David Limited T/A Holiday Inn Melbourne on Flinders (the Applicant) filed an application for termination of the Holiday Inn Melbourne on Flinders Enterprise Agreement 2011-2012 (the Agreement) by agreement pursuant to s.222 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement which nominally expired on 31 December 2012. I note that the Agreement covers an employee organisation that was formerly United Voice.

[2] Accompanying the application was a Form 24A statutory declaration (the declaration) made by Ms Sandra Smith-Scheuner, General Manager of the Applicant.

[3] On 27 August 2021, in an email to my Chambers, the Applicant’s representative advised that the application and the declaration had been served on the United Workers’ Union (UWU), an employee organisation that is now said to be covered by the Agreement.

[4] I issued Directions on 30 August 2021 requiring the UWU to advise the Commission whether or not it opposes the application of the Applicant to terminate the Agreement.

[5] On 1 September 2021, in an email to my Chambers, Ms Erin Keogh, the UWU’s Coordinator National Industry Strategy and Bargaining advised that the UWU does not intend to express a view or make submissions in relation to the application.

Legislation

[6] The Act relevantly provides as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination 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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration

Section 222

[7] I am satisfied that the requirements of s.222(1) and (2) of the Act are met. The application to terminate the Agreement has been made by the Applicant, a person covered by the Agreement. It was accompanied by the material required by the Fair Work Commission Rules 2013 being made by Form F24 and accompanied by the declaration setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.

[8] Section 222(3) sets out the timeframe within which an application must be made, being within 14 days after the termination is agreed to or if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows. In its Form F24 the Applicant stated the termination was agreed to on 13 August 2021 and as mentioned above, the Commission’s records show that the application was filed on 27 August 2021. I am therefore satisfied the application was made within 14 days after the termination was agreed to in accordance with s 222(3) of the Act.

Section 223

[9] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met. I consider each of those requirements below.

Each employer covered by the agreement complied with subsection 220(2) in relation to the agreement – s.223(a)

[10] The employer must take all reasonable steps to notify the employees of the time and date of the vote and the method that will be used (s.220(2)(a)) and give those employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).

[11] In the declaration, Ms Smith-Scheuner outlined the following steps were taken in respect of s.220(2)(a):

(i) Employees were sent an email and text message by GoVote on 9 August 2021 at 5:00pm, where they were advised that voting would commence at 1:00am on 12 August 2021 and would close at 11:59pm on 13 August 2021 and that it would be conducted online;

(ii) Employees were sent another email by GoVote on 12 August 2021 at 1:00am, where they were advised the ballot is now open and were provided with instructions on how to vote and advised votes were confidential and anonymous; and

(iii) Employees were sent an email by GoVote on 13 August 2021 at 9:00am where they were reminded the voting period closes at 11:59pm on 13 August 2021 and were again provided with instructions on how to vote.

[12] The Applicant submits, and I am persuaded, the above steps satisfy the requirements of s.220(2)(a).

[13] Also in the declaration, Ms Smith-Scheuner outlined the following steps were taken in respect of s.220(2)(b):

(i) Initially, the Applicant underwent a consultation and voting process to terminate the Agreement during June and July 2021. However, it was identified that employees who were not covered by the Agreement had been involved in the voting process.

(ii) As a result, the Applicant commenced a second consultation process with only the six employees covered by the Agreement;

(iii) The first consultation process commenced on 10 June 2021, where employees (including the six employees covered by the Agreement) were sent an email notifying them of the Applicant’s proposal to terminate the Agreement;

(iv) As part of that consultation process, the employees covered by the Agreement were given information about the proposal to terminate the Agreement which included group consultation sessions that explained the terms and conditions that would apply to those employees should the Agreement be terminated;

(v) Employees were sent individual impact letters and invited to attend individual consultation sessions to discuss the proposed changes;

(vi) The second consultation process commenced on 3 August 2021, where the six employees covered by the Agreement were invited to attend a consultation session on 5 August 2021 via Microsoft Teams; and

(vii) On 5 August 2021, the employees were sent a letter inviting them to attend a further individual consultation session and attaching the individual impact letter which had previously been provided to them.

[14] The Applicant submits, and I am persuaded, the above steps satisfy the requirements of s.220(2)(b).

The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies - s.223(b)

[15] As mentioned above, the Agreement is a single-enterprise agreement and therefore s.221(1) applies. Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

[16] Finally, Ms Smith-Scheuner outlined in the declaration that voting commenced on 12 August 2021 and ended on 13 August 2021, six employees are covered by the Agreement, all six employees cast a valid vote and five of them voted to approve the termination of the Agreement. The termination was agreed to on 13 August 2021.

[17] Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).

There are no other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

[18] On the basis of the material before me, I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.

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 – s.223(d)

[19] The Agreement is expressed to cover the Applicant and its employees in the positions set out at sub-clause 1.4.1 of the Agreement. 1 As mentioned above, the UWU is an employee organisation covered by the Agreement and has advised that it does not wish to express any view in relation to the application.

Conclusion

[20] Based on the material contained in the declaration made by Ms Smith-Scheuner filed with the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act. The application has been made in accordance with the requirements in s.222. I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required by s.221(1). I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination and I consider it is appropriate to approve the termination, taking into account the views of the UWU.

[21] In these circumstances, s.223 of the Act requires that I approve the termination and I do so.

[22] The termination will operate from 7 September 2021. 2 This results in the Hospitality Industry (General) Award 2020 applying on and from 8 September 2021,3 which I note is the first day of the Applicant’s next work cycle.

[23] An order giving effect to this decision is separately issued in PR733518.

DEPUTY PRESIDENT

 1   AE885360 at sub-clause 1.4.1.

 2 Section 224 of the Fair Work Act 2009.

 3 See Example 5 in s.36(1) of the Acts Interpretation Act 1901.

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