DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Star Millennium Pty Ltd T/A Holiday Inn Sydney Airport
(AG2021/6244)

HOLIDAY INN SYDNEY AIRPORT ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 25 AUGUST 2021

Application for termination of the Holiday Inn Sydney Airport Enterprise Agreement 2011-2012.

[1] Star Millennium 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 Sydney Airport 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, 31 August 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Star Millennium Pty Ltd, trading as Holiday Inn Sydney Airport, applied to the Fair Work Commission for the termination of the Holiday Inn Sydney Airport Enterprise Agreement 2011-2012. The applicant argued that the enterprise agreement was no longer appropriate due to significant changes in the business environment, which included economic downturns and a reduction in workforce. The respondents, the trade unions involved, contested the application, asserting that the agreement was still relevant and beneficial to the employees.

The legal issues before the court included whether the changes in the business environment constituted a significant change warranting the termination of the enterprise agreement, and whether the agreement's termination would unfairly disadvantage the employees. The court had to balance the employer's right to manage its business with the rights and protections afforded to employees under the Fair Work Act 2009. Furthermore, the court considered the principles of good faith bargaining and the potential impact of the termination on the employees.

The Fair Work Commission concluded that the significant changes in the business environment did indeed warrant the termination of the enterprise agreement. The court found that the economic downturn and reduced workforce size constituted a material change in circumstances, which rendered the agreement outdated and inequitable. The court emphasised that the termination would not unfairly disadvantage the employees, as it provided them with the opportunity to negotiate new terms that better reflected the current business reality. The decision was based on the principle that enterprise agreements should be flexible and responsive to changes in the workplace environment.

The Fair Work Commission ordered the termination of the Holiday Inn Sydney Airport Enterprise Agreement 2011-2012, effective from the date of the decision. The order allowed the parties to commence negotiations for a new enterprise agreement, ensuring that the process adhered to the principles of good faith bargaining. The court highlighted the importance of maintaining a fair and adaptable framework for enterprise agreements to support both business viability and employee protection.

Star Millennium Pty Ltd T/A Holiday Inn Sydney Airport

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established