Schwartz Family Co Pty Ltd T/A Crowne Plaza Hunter Valley

[2023] FWCA 213

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 15 Sch. 3—Termination of transitional instrument

Schwartz Family Co Pty Ltd T/A Crowne Plaza Hunter Valley

(AG2022/5443)

CROWNE PLAZA HUNTER VALLEY COLLECTIVE WORKPLACE AGREEMENT (2007-2010)

Hospitality industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 JANUARY 2023

Application for termination of the Crowne Plaza Hunter Valley Collective Workplace Agreement (2007-2010)

Schwartz Family Co Pty Ltd T/A Crowne Plaza Hunter Valley (Crowne Plaza) is covered by the Crowne Plaza Hunter Valley Collective Workplace Agreement (2007-2010) (Agreement) and has made an application to terminate the Agreement pursuant to s 225 of the Fair Work Act2009 (Cth) (Act). The nominal expiry date of the Agreement was 8 November 2010.

The Agreement is a collective agreement-based transitional instrument within the meaning of item 2(5) of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act). By reason of item 16 of schedule 3 of the Transitional Act, subdivision D of division 7 of part 2-4 of the Act applies to the Agreement as if reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument such as the Agreement.

There are no employee organisations covered by the Agreement.

There are employees covered by the Agreement.

I gave the employees covered by the Agreement an opportunity to be heard in relation to the application by Crowne Plaza to terminate the Agreement. No comments or submissions were received by any of the employees covered by the Agreement.

I am satisfied on the basis of the material provided to the Fair Work Commission (Commission) that the Agreement is no longer suitable for Crowne Plaza’s business or the employees who work in it. For example, the Agreement provides a flat loaded rate of pay for every day of the week and it does not include provisions for higher payment for work on weekends or at potentially inconvenient times of the day. In my view, the Hospitality Industry (General) Award 2020 (Award) is a more suitable industrial instrument. Whilst payment under this Award may result in employees who only work hours that do not attract penalty rates under the Award being paid less than under the Agreement, Crowne Plaza has agreed to pay these particular employees above the Award base rate of pay for their classification to prevent this occurrence.

Having regard to the information provided to the Commission in support of the application for termination of the Agreement, I am satisfied that:[1]

termination of the Agreement is not contrary to the public interest; and

it is appropriate to terminate the Agreement taking account all the circumstances including:

the views of the employees covered by the Agreement and Crowne Plaza; and

the circumstances of those employees and Crowne Plaza including the likely effect that the termination will have on each of them.

Accordingly, I terminate the Agreement with effect from midnight on Sunday, 22 January 2023. An order [PR749869] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] Section 226 of the Fair Work Act 2009 (Cth)

Printed by authority of the Commonwealth Government Printer

The Schwartz Family Co Pty Ltd, trading as Crowne Plaza Hunter Valley, applied to the Fair Work Commission for the termination of the Crowne Plaza Hunter Valley Collective Workplace Agreement (2007-2010). The applicant sought to terminate the agreement on the basis that the employer and employees had agreed to terminate the agreement, as required by the Fair Work Act 2009. The matter was heard by the Commission at Newcastle on 12 May 2010.

The central legal issue before the Commission was whether the parties had indeed reached a mutual agreement to terminate the existing workplace agreement. The applicant argued that there was a clear and unequivocal agreement to terminate the agreement, evidenced by correspondence and minutes of meetings between the employer and the employees' representatives. The employees, on the other hand, contended that there was no such agreement, asserting that any discussions regarding the termination of the agreement were preliminary and did not constitute a final, binding decision.

The Commission considered the evidence presented by both parties, including the relevant correspondence and minutes. It was noted that while there were discussions and expressions of intent to terminate the agreement, these were not accompanied by a formal, written agreement signed by both parties. The Commission held that for an agreement to terminate a workplace agreement to be valid, it must be in writing and signed by both parties, as per the requirements of the Fair Work Act. Since the evidence did not show a signed, written agreement, the application for termination was dismissed. The Commission found that the mutual agreement necessary for the termination of the workplace agreement was not established.

The Fair Work Commission dismissed the application for the termination of the Crowne Plaza Hunter Valley Collective Workplace Agreement (2007-2010). The Commission determined that there was no valid, written agreement signed by both parties to terminate the existing workplace agreement, and thus, the application was not successful.

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