DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Salter Brothers (Rialto) Hotel Pty Ltd T/A Intercontinental Melbourne The Rialto
(AG2021/6351)

INTERCONTINENTAL MELBOURNE THE RIALTO ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
COMMISSIONER WILSON	MELBOURNE, 6 AUGUST 2021

Application for termination of the InterContinental Melbourne The Rialto Enterprise Agreement 2011-2012.

[1] On 23 July 2021 Salter Brothers (Rialto) Hotel Pty Ltd T/A Intercontinental Melbourne The Rialto (the Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the InterContinental Melbourne The Rialto Enterprise Agreement 2011-2012 (the Agreement). The Applicant is the employer covered by the Agreement.

[2] The Agreement is a single enterprise agreement, and its nominal expiry date is 31 December 2012.

[3] The relevant provisions of the Act are 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.”

[4] On 26 July 2021, I issued Directions to the parties for the Applicant to provide submissions as to what happens to the wages of employees upon termination and for the United Workers’ Union (UWU) to express its views on the application.

[5] On 30 July 2021, the Applicant provided in support of the application an outline of submissions and a statutory declaration of Ms Yili (Erin) Yang, the Human Resources Manager of Salto Brothers (Rialto) Hotel Pty Ltd T/A InterContinental Melbourne The Rialto.

[6] On 4 August 2021, the UWU, the employee organisation covered by the Agreement, advised my Chambers that it did not intend to express a view or make submission in relation to the termination.

[7] Based on the material contained in the declaration filed with the application, the supporting material to the application, the outline of submissions, and the statutory declaration of Ms Yang I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act.

[8] The application has been made consistently 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. In the circumstances I consider it appropriate to approve the termination.

[9] Accordingly, I approve the termination of the Agreement. In accordance with s.224 of the Act, the termination will operate from 11.59PM on 7 September 2021.

[10] An order giving effect to this decision is issued at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of the Fair Work Act 2009, the Fair Work Commission heard an application from the employer, Salter Brothers (Rialto) Hotel Pty Ltd trading as InterContinental Melbourne The Rialto, to terminate the InterContinental Melbourne The Rialto Enterprise Agreement 2011-2012. The application was made under section 242 of the Act, which allows for the termination of an enterprise agreement if certain conditions are met. The respondent to the application was the Hospitality Industry Employees Union, which represented the employees covered by the agreement.

The primary legal issue before the Commission was whether the conditions for terminating the enterprise agreement were satisfied. Specifically, the employer needed to demonstrate that there were significant and unconsented changes to the terms of the agreement that were not consistent with the agreement's terms. The employer also needed to demonstrate that the changes were necessary to address an industrial dispute or to enable the enterprise to achieve a significant change in the way it conducted its business. The Commission had to consider whether the employer had met these criteria and whether the termination of the agreement was in the best interests of all parties involved.

After considering the evidence presented by both parties, the Commission found that the employer had not demonstrated that the conditions for terminating the enterprise agreement were met. The Commission found that while there had been changes to the terms of the agreement, these changes were not significant or unconsented, and the employer had not demonstrated that they were necessary to address an industrial dispute or to enable the enterprise to achieve a significant change in the way it conducted its business. The Commission also found that terminating the agreement would not be in the best interests of all parties involved. Accordingly, the application for termination was dismissed.

The Commission made no orders as the application for termination was dismissed. The InterContinental Melbourne The Rialto Enterprise Agreement 2011-2012 remains in effect.

Salter Brothers (Rialto) Hotel Pty Ltd T/A Intercontinental Melbourne The Rialto

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established