Most conventional hotel management agreements (HMAs) provide that all hotel employees (Hotel Personnel) are to be trained by, and under the supervision of, the manager. Such agreements usually go on to provide that the owner shall implement such guidance and instruction as provided by the manager.
To a person new to the hotel industry, it may seem a little odd that even though the Hotel Personnel are under the control of the manager, it is usual for most if not all of the Hotel Personnel to be employed by the owner.
In some instances, a small number of senior Hotel Personnel such as the general manager, and the chief financial officer may be employed by the manager directly. In these circumstances, the employment costs of these senior personnel would always be reimbursed to the manager by the owner.
This is a practice which has existed in the hotel industry for a very long time and is adopted by every hotel operating company Baker & McKenzie has been involved with whether domestic or international.
This seemingly is a universal practice and whilst there may be other reasons, we understand that the primary reason for this is that managers do not wish to be responsible for the redundancy costs of Hotel Personnel if the owner experiences a financial crisis and becomes unable to continue to fund hotel operations.
If this circumstance arises, and the hotel needs to cease operations in circumstances where Hotel Personnel cannot be redeployed to another hotel, then such employees would need to be made redundant. Such redundancy costs can be significant and the manager does not want to be responsible for such costs in addition to the cost of losing the management fee income stream.
From an operator’s standpoint this is entirely justifiable. It is a service provider to the owner who runs the hotel business through the services of the Hotel Personnel. Furthermore, if the manager’s fees had to be calibrated to take into account the redundancy cost, which would exist if the Hotel Personnel were employed by the manager, then such fees would potentially be prohibitive.
With respect to senior Hotel Personnel, it is understandable why the manager would be prepared to bear the risk of their employment. These are the key personnel, which need to feel particularly close to the manager. In any event, the redundancy risk with such Hotel Personnel would be significantly less than the remainder of the workforce due to the relative ease with which such senior Hotel Personnel can be redeployed to other hotels operated by the manager.
About the author
Graeme Dickson is a partner in the Structured Real Estate group in Sydney at Baker & McKenzie and is global coordinator of the Firm’s leading Hotels, Resorts & Tourism Practice Group. He is recommended by Best Lawyers, Chambers Asia Pacific and Doyle’s Guide for his work advising on hotels and tourism law.
Graeme acts primarily for clients in the hotels, resorts, tourism and wider property industries. He has worked extensively on structured purchases and sales of hotel and resort properties, and on managed investment fundraisings which include all forms of public trusts, timeshare schemes, tax driven investment schemes and other similar investments. He has advised on hotel and resort management contracts — including non-disturbance agreements between owners, operators and lenders — and integrated resort developments in Australia, New Zealand, Fiji, Tahiti, Maldives, the Caribbean, Singapore, the United States, People’s Republic of China (including Hong Kong), Japan, Vietnam, Malaysia, India, Thailand, Cambodia, Indonesia, Korea, the Philippines and Eastern Europe.