Salter Brothers (Canberra) Hotel Pty Ltd T/A Crowne Plaza Canberra

[2021] FWCA 4273

[2021] FWCA 4273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Salter Brothers (Canberra) Hotel Pty Ltd T/A Crowne Plaza Canberra
(AG2021/6175)

IHG CANBERRA ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
DEPUTY PRESIDENT DEAN	CANBERRA, 20 JULY 2021

Application for termination of the IHG Canberra Enterprise Agreement 2011-2012.

[1] On 13 July 2021 Salter Brothers (Canberra) Hotel Pty Ltd T/A Crowne Plaza Canberra (Applicant) made an application to terminate the IHG Canberra Enterprise Agreement 2011-2012 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement and has a nominal expiry date of 31 December 2012.

[2] The legislative provisions governing this application are set out in sections 219 to 224 of the Act which states relevantly the following:

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

…

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

..

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.

[3] The application was supported by a declaration made by Mr Robert Stewart (General Manager) which outlined the process taken to discuss the proposed termination of the Agreement. Mr Stewart stated that employees covered by the Agreement were notified of the time and place of the vote and that a majority of the employees who cast a valid vote approved the termination.

[4] The United Workers’ Union (formerly known as the United Voice), being the employee organisation covered by the Agreement, was advised of the application and did not raise any objection.

[5] Having considered the material before me, I am satisfied that each of the requirements contained in ss.222 and 223 of the Act as are relevant to this application have been met. I consider that it is appropriate to approve the termination.

[6] The termination of the Agreement is approved. The termination operates on and from 26 August 2021.

DEPUTY PRESIDENT

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