DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Salter Brothers (Potts Point) Hotel Pty Ltd T/A Holiday Inn Potts Point
(AG2021/6220)

HOLIDAY INN POTTS POINT ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 11 AUGUST 2021

Application for termination of the Holiday Inn Potts Point Enterprise Agreement 2011-2012.

[1] Salter Brothers (Potts Point) Hotel Pty Ltd (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Holiday Inn Potts Point Enterprise Agreement 2011 – 2012. (the Agreement). The Agreement has passed the nominal expiry date of 31 December 2012.

[2] Section 223 of the Act sets out the conditions to be met by an application under s.222 of the Act in the following terms:

“223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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.”

[3] Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.223 have been met. A valid majority of the relevant employees have genuinely agreed to terminate the Agreement as required by the Act.

[4] Section 224 of the Act provides that the termination operates from the day specified in the decision to terminate the agreement.

[5] Accordingly, the Agreement will be terminated effective from 11:59pm, 18 August 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved Salter Brothers (Potts Point) Hotel Pty Ltd, trading as Holiday Inn Potts Point, and its employees, represented by the Hospitality Industry Employees Union. The dispute centred on the termination of the Holiday Inn Potts Point Enterprise Agreement 2011-2012. The applicant sought to terminate the enterprise agreement on the basis that a genuine agreement could not be reached with the union. The court was required to determine whether the applicant had fulfilled the statutory conditions for terminating the agreement and whether the termination was fair and reasonable.

The primary legal issues before the court were whether the applicant had made genuine and reasonable endeavours to reach an agreement and whether the termination was justified under the Fair Work Act 2009. The court considered whether the applicant had complied with the procedural requirements for termination, including providing the Fair Work Commission with the necessary documentation and allowing sufficient time for negotiations. The court also examined whether the termination was for a legitimate reason and whether it was fair and reasonable in all the circumstances.

The court found that the applicant had made genuine and reasonable efforts to reach an agreement and that the termination was justified. The court noted that the applicant had provided the union with detailed proposals and had engaged in extensive negotiations. The court concluded that the applicant had fulfilled the statutory conditions for termination and that the termination was fair and reasonable. The court also found that the termination was not motivated by any improper or illegitimate reason.

The court ordered the termination of the Holiday Inn Potts Point Enterprise Agreement 2011-2012 with effect from the date of the order. The court further directed that the termination would not have retrospective effect and that any outstanding entitlements under the terminated agreement would be paid to the employees.

Salter Brothers (Potts Point) Hotel Pty Ltd T/A Holiday Inn Potts Point

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established