Starhill Hotel Pty Limited (Melbourne, Sydney, Brisbane)

[2012] FWA 7561

[2012] FWA 7561

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 318 - Application for an order relating to instruments covering new employer and transferring employees in agreements

Starhill Hotel Pty Limited (Melbourne, Sydney, Brisbane)
(AG2012/10373, AG2012/10374, AG2012/10376)

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 SEPTEMBER 2012

Application for an order relating to instruments covering new employer and transferring employees in agreements.

[1] This decision follows upon my extempore decision of 23 August 2012 in which I made orders, pursuant to s 319(1) of the Fair Work Act 2009 (‘the Act’) in relation to industrial instruments covering new employers and transferring employees in agreements.

[2] Three applications in relevantly similar terms have been lodged by Starhill Pty Ltd (Sydney), Starhill Pty Ltd (Melbourne) and Starhill Pty Ltd (Brisbane) in respect to three enterprise agreements approved by Booth DP on 21 May 2012. Those agreements are the:

• Melbourne Marriott Hotel Enterprise Agreement 2012 [AE894135];


• Sydney Harbour Marriott Enterprise Agreement 2012 [AE894148]; and


• Brisbane Marriott Hotel Enterprise Agreement 2012 [AE894142].

[3] Each of the Agreements have a nominal expiry date of 31 June 2015 and the relevant Union - United Voice - is covered by the Brisbane Agreement.

[4] At a hearing of the applications on 23 August 2012, at which the three matters were joined, Mr M Cooper, Solicitor appeared for the applicants with Ms N Rasheed, Director of Human Resources. Mr Cooper relied on the affidavit of Ms Rasheed in which she deposed as follows:

‘The Applicant is covered, in relation to work to be performed by employees in connection with the operation of the Hotel following the Sale, by the Hospitality Industry (General) Award 2010 (Award). Accordingly, if Fair Work Australia declines to grant the application and make the orders sought, the Award will cover and apply to the non-transferring employees.

If the Applicant engages any non-transferring employees to perform, or who are likely to perform, the Transferring Work, they will not, on an overall basis, be disadvantaged by the order sought in relation to their terms and conditions of employment. A summary of the terms of the Agreement and the Award is attached as ‘NAR-2’.

There are a number of provisions under the Agreement which are superior to those contained in the Award. Some of the benefits which will not be available to the non-transferring employees unless the order is made include:

a) additional superannuation entitlements;

b) wage rates which are above the Award (initially 3.0% above the rates under the Award, and never less than 2.5% above the Award);

c) the provision of a birthday holiday;

d) a higher rate of pay for time spent on jury service duty;

e) the exclusion of junior rates of pay;

f) the inclusion of an apprentice bonus; and

g) the exclusion of the ability to make deductions for meals or accommodation.

If the Agreement does not cover the non-transferring employees following the Sale, there will be a negative impact on the productivity of the Applicant’s workplace. The Hotel is divided into a number of departments, the operation of which have been established by the Marriott to reflect the terms of the Agreement. The engagement and classification of employees is based on this approach. It would pose significant difficulties for the Applicant to have to restructure the method of engaging and classifying staff.

The Agreement is intended to improve productivity at the Hotel and was negotiated to meet the needs of the Hotel, including by providing for multi-hire casual work and flexible arrangements for the engagement of part-time employees. The Award does not contain an equivalent to these forms of engagement. The flexibility afforded by multi-hire casual work and flexible part-time employment enables the Marriott to implement efficient and effective systems of work, while providing employees with the opportunity, if they so choose, to work flexibly or undertake additional work. Removing these flexibilities at the Hotel by declining to make the order sought will have a significant detrimental impact on productivity.

The Applicant maintains that it is appropriate for all employees employed by it, whether they are Existing Employees or non-transferring employees, to be subject to, and derive the benefits of, a common set of conditions regulated by a common industrial instrument. It would have a marked impact on productivity if employees who are performing the same, or substantially the same work, do not receive the same terms and conditions of employment.

If the Agreement does not cover the non-transferring employees following the Sale, the Applicant will incur significant economic disadvantage as it would be required to administer the Agreement and the Award simultaneously, resulting in significant administrative, rostering and payroll burdens. Further, the Applicant would be required to review its operations at the Hotel, particularly the method in which each department operates, in light of the fact that both the Award and the Agreement would apply simultaneously. This would likely necessitate a restructure of the way the Hotel employees are managed and the method by which each department engages employees.

There is a lack of business synergy between the Agreement and the Award. Further, there are a number of differences between the term and conditions of employment under the Agreement and the Award such that there would be a high risk of industrial disharmony if the Agreement was to apply to transferring employees, and the Award was to apply to non-transferring employees.’

[5] Mr Cooper made extensive submissions in support of the applications and noted that the relevant Union had been made aware of the applications and it may be assumed that it does not oppose the orders sought. Mr Cooper addressed each of the matters FWA is required to take into account under s 319 of the Act.

[6] Having considered the helpful submissions of Mr Cooper and reviewing the documentation filed with the applications, I am satisfied that all of the statutory requirements of the Act, in so far as relevant to these applications, have been met. I propose to make the orders sought in Annexure B to each of the applications. Orders to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr M Cooper, Solicitor for the applicant

Hearing details:

2012

SYDNEY

August 23

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