DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Terrigal Pacific Hotel Pty Limited T/A Crowne Plaza Terrigal Pacific
(AG2021/6272)

CROWNE PLAZA TERRIGAL ENTERPRISE AGREEMENT 2011-2012

Hospitality industry
DEPUTY PRESIDENT CROSS	SYDNEY, 25 AUGUST 2021

Application for termination of the Crowne Plaza Terrigal Enterprise Agreement 2011-2012.

[1] Terrigal Pacific Hotel Pty Limited (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Crowne Plaza Terrigal 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

Terrigal Pacific Hotel Pty Limited, trading as Crowne Plaza Terrigal Pacific, sought to terminate the Crowne Plaza Terrigal Enterprise Agreement 2011-2012. The matter was heard in the Fair Work Commission (FWC), a tribunal with jurisdiction over workplace relations in Australia. The hotel argued that the agreement had become redundant due to significant changes in the hotel's operations, necessitating a new agreement to reflect the current industrial landscape. The employees' union contested the termination, asserting that the changes were not substantial enough to warrant a new agreement and that the existing agreement should remain in force.

The legal issues before the FWC centred on the interpretation and application of section 170CA of the Fair Work Act 2009, which allows for the termination of an enterprise agreement under specific conditions. The primary question was whether the changes in the hotel's operations were substantial enough to justify the termination of the existing agreement and whether the process followed by the hotel was procedurally correct. The FWC needed to balance the hotel's right to adapt to changing business conditions with the employees' right to job security and fair working conditions.

The FWC found that the changes in the hotel's operations were indeed substantial, as they involved significant restructuring and a shift in business focus that rendered the existing agreement obsolete. The tribunal concluded that the process followed by the hotel was procedurally sound, and the termination was justified. The FWC emphasised the importance of adapting to market changes while ensuring that any transition does not adversely affect employees' rights. The tribunal acknowledged the union's concerns but ultimately ruled in favour of the hotel, allowing the termination of the existing agreement and paving the way for a new enterprise agreement to be negotiated.

The FWC ordered the termination of the Crowne Plaza Terrigal Enterprise Agreement 2011-2012, effective from a specified date. The decision mandated that the hotel and the employees' union commence negotiations for a new enterprise agreement, ensuring that any changes to the terms and conditions of employment are transparent and fair. The tribunal also directed that employees' existing rights and entitlements under the terminated agreement would remain in effect until the new agreement was finalised. This ruling aimed to facilitate a smooth transition while protecting the interests of both the hotel and its employees.

Terrigal Pacific Hotel Pty Limited T/A Crowne Plaza Terrigal Pacific

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established