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

[2021] FWCA 4739

[2021] FWCA 4739

FAIR WORK COMMISSION

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

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