Salter Brothers (Coogee Beach) Hotel Pty Ltd T/A Crowne Plaza Sydney Coogee Beach

[2021] FWCA 4792

[2021] FWCA 4792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Salter Brothers (Coogee Beach) Hotel Pty Ltd T/A Crowne Plaza Sydney Coogee Beach
(AG2021/6338)

CROWNE PLAZA COOGEE BEACH ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
COMMISSIONER MATHESON	SYDNEY, 5 AUGUST 2021

Application for termination of the Crowne Plaza Coogee Beach Enterprise Agreement 2011-2012.

[1] On 22 July 2021, Salter Brothers (Coogee Breach) Hotel Pty Ltd T/A Crowne Plaza Sydney Coogee Beach (Applicant) made an application (Application) pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to the Fair Work Commission (Commission) to terminate the Crowne Plaza Coogee Beach Enterprise Agreement 2011-2012 (Agreement).

[2] The Agreement is a single enterprise agreement. It was approved by Commissioner Thatcher on 5 May 2011. 1  The nominal expiry date of the Agreement is 31 December 2012.

Legislation

[3] The relevant provisions of the Act are as follows:

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.

Consideration – s.222 of the Act

Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?

[4] Having considered the materials before me, I am satisfied that the Application was made by an employer covered by the Agreement as a result of a transfer of business and that the Applicant has standing to make the Application.

[5] Clause 1.3.1 of the Agreement names ‘HANZ (Coogee) Pty Ltd as trustee for HANZ (Coogee) Trust trading as Crowne Plaza Coogee Beach’ (Prior Employer) as being a party bound by the Agreement.

[6] The Applicant has indicated at question 2.1 of the Form F24 – Application for termination of an enterprise agreement by agreement (Form F24) that:

(a) On 10 December 2012, the Applicant purchased Crowne Plaza Coogee Beach (Prior Employer).

(b) This resulted in a transfer of business for the purposes of s.311 of the Act.

(c) Existing employees of the Prior Employer were offered, and accepted, employment with the Applicant in comparable positions and on terms and conditions of employment substantially similar to, and no less favourable than, their employment with the Prior Employer (Transferring Employees).

(d) The work performed by the Transferring Employees for the Applicant following the transfer of business was the same, or substantially the same, as the work they performed for the Prior Employer.

(e) Due to s.313(1)(a) of the Act, the Transferring Employees continued to be covered by the Agreement.

[7] S.313(1) of the Act provides:

313 Transferring employees and new employer covered by transferable instrument

(1) If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a) the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(b) while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

[8] The Applicant, in its Form F24, also refers to the decision of Deputy President Sams in SB&G (Rialto) Hotel Pty Ltd and Others [2016] FWC 4150. This decision dealt with five applications, filed pursuant to s.319 of the Act, one of which was made by SB&G (Coogee Beach) Hotel Pty Ltd. The applications were made in the context of an acquisition of certain hotel businesses. Among the orders sought was an order that the Agreement would cover non-transferring employees who perform, or who are likely to perform, transferring work for the applicants which included SB&G (Coogee Beach) Hotel Pty Ltd. 2

[9] Deputy President Sams made the orders sought. 3 The Applicant provided a copy of the relevant order at Attachment A to its Form F24. The order took effect on and from 24 June 2016 and had the effect that the Agreement covers, or would cover, non-transferring employees engaged by SB&G (Coogee Beach) Hotel Pty Ltd who perform, or are likely to perform, the transferring work.

[10] The Applicant noted, in its Form F24, that SB&G (Coogee Beach) Hotel Pty Ltd changed its name to the name of the Applicant, Salter Brothers (Coogee Beach) Hotel Pty Ltd, on 18 June 2019. A Certificate of registration on Change of Name was provided at Attachment B of the Applicant’s Form F24 evidencing the change.

Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?

[11] I am satisfied that the Application is accompanied by the material required by the Fair Work Commission Rules 2013 and that the requirements of s.222(2) of the Act have been met.

[12] In support of the Application, Mr Gareth Long, General Manager of the Applicant, has filed the Form F24 and a Form F24A – declaration in support of termination of an enterprise agreement (Form F24A) on behalf of the Applicant.

Has the Application been made within the required timeframe per s.222(3)(a)?

[13] S.222(3) of the Act 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.

[14] I am satisfied that the requirements of s.222(3) of the Act have been met.

[15] Mr Long declared that the termination was agreed on 8 July 2021.

[16] The Commission’s records show the Application was filed on 22 July 2021, within 14 days after the termination was agreed.

Consideration – s.223 of the Act

[17] I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

S.220(2)

[18] S.223(a) requires me to be satisfied that each employer covered by the agreement complied with s.220(2) in relation to the agreement. I consider this requirement below.

Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?

[19] Having considered the materials before me, I am satisfied that before requesting that the employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify the employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.

[20] Mr Long declared in the Form F24A that the following steps were taken to notify the employees of the time, place and voting method that would be used, with supporting attachments provided for each step:

(a) Between 17 June 2021 and 22 June 2021 employees were sent documents following consultation about the proposed termination of the Agreement. A document entitled ‘Enterprise Agreement to Hospitality Industry General Award FAQs for Colleagues’ was provided to employees. This document explained that the voting method would be an anonymous online/SMS ballot conducted by an electronic ballot services provider. The document explained employees would receive an email and SMS from an electronic ballot services provider when the voting period commenced with instructions on how to vote.

(b) On 22 June 2021 a ballot notification was sent to employees by an electronic ballot services provider on behalf of the Applicant. This notification advised of the opening and closing dates and times of a ballot and provided instructions on how to lodge a vote.

(c) On 28 June 2021 a further ballot notification was sent to employees by the electronic ballot services provider on behalf of the Applicant advising of updated opening and closing dates and times of a ballot and providing instructions on how to lodge a vote.

(d) On 30 June 2021 an email was sent to employees by the electronic ballot services provider advising that the ballot period had opened and that a vote could be cast by Internet or SMS at any time before 9am AEST on 3 July 2021. The email included detailed voting instructions.

(e) Reminders to vote were posted in an employee Facebook group named ‘Crowne Plaza Coogee Beach Teamspace’ between 29 June 2021 and 2 July 2021.

[21] Mr Long declared in the Form F24A that on 2 July 2021 an error was identified in relation to the ballot data resulting in a small number of employees receiving voting instructions with an incorrect name listed. This required the ballot to be voided and recommenced. The Form F24A describes the following additional steps that were taken to advise of the new time at which the vote would occur:

(a) On Friday 2 July 2021 an email was sent to employees advising of the error and that the vote would need to be conducted again. The email advised the voting period would recommence from 10am Monday. A similar update was also posted on the employee Facebook group.

(b) On Monday 5 July 2021 an email was sent to employees by the electronic ballot services provider advising that the ballot period had opened and that a vote could be cast by Internet or SMS at any time before 10am AEST on 8 July 2021. The email included voting instructions in the same form as those provided in the email sent to employees by the electronic ballot services provider on 30 June 2021.

[22] In all the circumstances, I am satisfied that employees were notified about the voting time prior to being requested to vote. I am also satisfied that the voting method had been explained and that the requirements of s.220(2)(a) of the Act have been met.

Did the Applicant give the employees a reasonable opportunity to decide whether they want to approve the proposed termination as required by s.220(2)(b) of the Act?

[23] Having considered the materials before me, I am satisfied that the Applicant has given employees a reasonable opportunity to decide whether they want to approve the proposed termination.

[24] Mr Long declared in the Form F24A the steps taken to ensure this. These steps are set out below and attachments to the Form F24A were provided in support of each step:

(a) On 16 June 2021 employees were sent a letter notifying them about the Applicant’s proposal to terminate the Agreement and to transition to the Hospitality Industry (General) Award 2020 (Award). The letter invited employees to attend a consultation session, included a contact phone number if employees had questions and offered alternatives if employees were not able to attend. Those alternatives were:

(i) a one-on-one session in person or via phone call; and

(ii) a copy of the documents explaining the likely effect of the termination of the Agreement which were to be discussed in the consultation session.

(b) Between 17 June 2021 and 21 June 2021, consultation sessions were conducted. A roster comparison tool was provided upon request. A consultation script was attached to the Form F24A explaining:

(i) that the Applicant was considering terminating the Agreement and that if this happened employment terms and conditions would be governed by the Award;

(ii) why the Applicant was considering terminating the Agreement;

(iii) some of the material differences between the Agreement and Award;

(iv) specific impacts for different cohorts of employees being full time and part time employees, casual employees, salaried employees and managerial employees; and

(v) that the Applicant would like to hear from employees and inviting questions.

(c) Between 17 June 2021 and 22 June 2021 employees were sent an individual impact letter specific to their employee cohort and explanatory documents. They were also informed that if they had queries, they could contact Human Resources or Mr Long.

[25] I am satisfied the steps taken by the Applicant satisfy the requirements of s.220(2)(b).

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

[26] S.223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.

[27] Having considered the materials before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.

[28] Mr Long declared that:

(a) of the 76 employees covered by the Agreement, 61 cast a valid vote; and

(b) of the valid votes cast, 48 were to terminate the Agreement.

[29] A document produced by the electronic ballot services provider entitled ‘Official Ballot Result’ and dated 8 July 2021 was attached to the Form F24A and indicated a 78.7% majority vote in favour of terminating the Agreement.

Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

[30] I am satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination.

Consideration of the views of the employee organisation or employee organisations (if any) covered by the agreement – s.223(d)

[31] The decision of Commissioner Thatcher to approve the Agreement noted that in accordance with s.201(2) of the Act, the Agreement covers United Voice. 4 On 11 November 2019 United Voice and the National Union of Workers amalgamated. The amalgamated organisation is now known as the United Workers Union.

[32] The Applicant indicated in its Form F24 that the United Workers Union is covered by the Agreement.

[33] On 22 July 2022 the Commission directed that:

(a) by no later than 4:00 pm Friday, 23 July 2021, the Applicant must email a copy of the directions to its employees and any relevant employee organisations (if any);

(b) by no later than 4:00 pm Monday, 26 July 2021, a director or officer of the Applicant must file in the Commission and serve on any relevant employee organisations (if any), a statutory declaration confirming compliance with the directions; and

(c) by no later than 4.00pm Monday, 2 August 2021, any employee or relevant employee organisations (if any) which oppose the termination of the Agreement must file in the Commission any submissions, written statements and documents they rely upon in opposition to the termination of the Agreement.

[34] The Commission also directed that if any party was seeking a hearing, then this request should be made along with the filing of materials as per the above program and that in the absence of such a request the matter will be determined on the papers.

[35] On 26 July 2021 Mr Long filed a statutory declaration confirming that the directions had been emailed to employees and the United Workers Union on 22 July 2021.

[36] On 30 July 2021 the United Workers Union advised it did not intend to express a view or make a submission in relation to the matter and requested to be notified of any correspondence, decision or direction of the Commission.

[37] No submissions in opposition were filed by the United Workers Union or any other employee organisation.

Conclusion

[38] Based on the material before the Commission, including the statutory declaration provided by the Applicant, I am satisfied that the requirements of s.223 of the Act have been met.

[39] At the time of submitting its Application, the Applicant filed a letter from its representatives submitting that the effective date of termination should be the earlier of the following to allow for the Award to apply from the first day of a new work cycle:

(a) 11.59pm on 17 August 2021 (with 18 August 2021 being the first date the Award will apply); or

(b) 11.59pm on 14 September 2021 (with 15 September 2021 being the first date the Award will apply).

[40] No submissions in opposition were filed.

[41] S.224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.

[42] In accordance with s.224 of the Act, the termination will come into effect on and from 18 August 2021.

[43] An Order to this effect PR732520 has been issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR732518>

 1   [2011] FWAA 2614

 2   [2016] FWC 4150 at [2].

 3   [2016] FWC 4150 at [8].

 4   [2011] FWAA 2614 at [5].