1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
Alpine Resorts Award 2010
(AM2016/30)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER RIORDAN SYDNEY, 27 AUGUST 2018
Alpine Resorts Award 2010 - substantive issues concerning coverage
Introduction and background
[1] In the 4 yearly review of the Alpine Resorts Award 2010 (Alpine Award), applications
have been made by a number of employers and employer groups to alter the coverage of the
award. The primary application has jointly been made by Australian Business Industrial, the
NSW Business Chamber and the Thredbo Chamber of Commerce, with the support of the
Australian Hospitality Association (primary applicants). This application is opposed by an
employer association, the Australian Ski Areas Association (ASAA), and also by the
Australian Workers’ Union (AWU), the Shop, Distributive and Allied Employees’
Association (SDAEA) and United Voice. A secondary application has been lodged by the
Mount Hotham Alpine Resort Management Board (Mount Hotham Board).
[2] The coverage of the Alpine Award is dealt with in clause 4, Coverage. Only clause 4.1
is relevant to the applications. It provides:
4.1 This industry award covers employers throughout Australia who operate an
alpine resort and their employees in the classifications within Schedule B –
Classification Definitions to the exclusion of any other modern award.
[3] The expression “alpine resort” used in clause 4.1 is defined in clause 3, Definitions
and interpretation as follows:
alpine resort means an establishment whose business, among other things, includes
alpine lifting.
[4] The classification structure in the Alpine Award, which is set out in Schedule B, has a
training level classification, seven “Resort Worker” classifications, and five classifications for
snowsports instructors. The “Resort Worker” classifications encompass a broad range of work
functions, including receptionists, bar staff, food service workers, kitchenhands,
housekeepers, guest service roles, child care workers, laundry workers, chefs, retail staff, tour
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E AUSTRALIA FairWork Commission
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guides, lift operators, fitness instructors, plant operators, ski patrollers, beauty therapists, and
trade qualified staff in electrical, fitting, mechanical, painting, spray painting, carpentry and
building disciplines.
[5] The application made by the primary applicants, in the final form advanced in a draft
determination provided to us at the hearing on 1 November 2017,1 sought to alter the
coverage of the Alpine Award by deleting clause 4.1 and replacing it with the following:
4.1 This industry award covers employers throughout Australia in the Alpine
Resorts Industry and their employees who are engaged in an Alpine Region in
the classifications within Schedule B – Classification Definitions to the
exclusion of any other modern award.
[6] The application sought that the existing definition of “alpine resort” in clause 3 be
deleted, and replaced by a new definition of the expression “Alpine Resorts Industry” as
follows:
“Alpine Resort Industry” means the industry comprised of the following two kinds of
establishments:
(a) those establishments whose business, among other things, includes alpine
lifting; and
(b) those establishments which are engaged wholly or principally in the provision
of accommodation services, functions/conferences, restaurant/food and
beverage services, food retailing and the retail sale and/or hire of snow sports
equipment.
[7] It also sought that a new definition, of the expression “Alpine Region”, be added to
clause 3 as follows:
“Alpine Region” means:
(a) the area within a 2.5 kilometre radius of :
(I) the Thredbo Village LPO;
(II) the Perisher Valley LPO;
(III) the Charlotte Pass Village;
(IV) the Mount Buller LPO;
(V) the Falls Creek LPO;
(VI) the Mount Hotham Alpine Resort; or
1 Transcript 1 November 2017 at PN 2310-PN2328
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(b) Blue Cow, Smiggin Holes, Guthega, Mount Selwyn, Dinner Plain Alpine
Village, Mount Stirling, Mount Baw Baw Village or Ben Lomond.
[8] The purpose of the primary applicants’ application was to bring within the coverage of
the Alpine Award (and to remove from the coverage of other modern awards) businesses,
primarily accommodation, food, hospitality and retail businesses, and their employees which
operate in the vicinity of alpine resorts.
[9] The variation sought by the Mount Hotham Board was contained in a draft
determination filed on 30 November 2016. It proposed that clause 4.1 of the Alpine Award be
varied to read as follows:
4.1 This industry award covers employers throughout Australia who operate or
have statutory responsibility for management and operation of an alpine resort and
their employees in the classifications within Schedule A [sic] – Classifications
Definitions to the exclusion of any other modern award.
[10] It also proposed that the definition of “alpine resort” in clause 3 be varied to read:
alpine resort means:
(a) Any establishment whose business, among other things, includes alpine lifting;
and/or
(b) Any establishment which has statutory responsibility for management and
operation of an alpine resort, whether or not that establishment operates an
alpine lift.
[11] The purpose of Mount Hotham’s application was to ensure that it and other statutory
boards in Victoria which had management or operational responsibility for snow resorts, but
which did not themselves necessarily operate an alpine lift, were covered by the Alpine
Award.
Evidence of the primary applicants
[12] The primary applicants called evidence from a number of witnesses who operated or
managed businesses in the vicinity of alpine resorts.
Nick Cook
[13] Nick Cook2 was the director of Mount Beauty Supermarket Pty Ltd (MBS), which
operates three FoodWorks supermarkets at Falls Creek, Mount Beauty and Yackandandah in
Victoria. He was also the director of Nareco Pty Ltd, which operates another FoodWorks
supermarket in Myrtleford, Victoria. The Falls Creek FoodWorks is the only grocery store in
the village of Falls Creek, where an alpine resort was located. Mr Cook gave evidence that the
2 Witness Statement – 21 March 2017, Exhibit Q.
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Falls Creek store is highly seasonal, with the month of January accounting for just three per
cent of the store’s annual turnover. He said he had just one staff member employed during the
summer months with less operational hours, and in the winter months he employed
approximately ten employees full-time, and operated seven days per week. Given the nature
of his labour requirements, he employed seasonal staff on a casual basis,. Most of his
employees were itinerant workers who worked at the store to cover their living costs while
they skied or snowboarded at the resort, and they were provided with heavily subsided
accommodation during that period. He stated that it was not uncommon for seasonal
employees to request days off mid-week so that they could ski or snowboard when there were
smaller crowds on the ski fields.
Jason Moon
[14] Mr Jason Moon3 owned White Winter Investments Pty Ltd, which operated and
owned two businesses in Falls Creek, one being an accommodation business and the other a
restaurant. He stated that both of his businesses ran all year round, however most of their
revenue was made in the winter months. He estimated that 90% of the revenue for his
apartments and 70% of his restaurant revenue was made during the winter months. He gave
evidence that during the summer season he had minimal staffing requirements. During the
winter season he employed all of his staff on a short term casual basis, which suited his
operational needs. It also suited his employees’ needs, as all of his casual staff were on
working holidays and worked for him while they skied or snowboarded in their free time. He
said that he staffed his employees on the basis of an “open-book” policy, whereby staff
requested certain shifts and he allocated them when they were available. He stated that
weekends were always the highest requested days to work. He said that he paid all of his
casual staff the award rates, plus they also received a number of other benefits including
discounted food and drink from his restaurants, season ski passes and accommodation.
Brett Anthony Williams
[15] Brett Anthony Williams4 was employed by FSCM Pty Ltd in the role of General
Manager of Frueauf Village, a large apartment complex in the centre of Falls Creek Village.
Mr Williams described the seasonal nature of the work there, and said that all employees were
engaged under the Hospitality Industry (General) Award 2010 (Hospitality Award). He gave
evidence that throughout the year there was one full time bookings/reservations manager and
one casual housekeeper employed, and in the winter months he employed an additional eight
casual employees for the increased workload. He said that most of his employees were
international workers and that he provided a subsidised rate for their accommodation. Under
his rostering arrangements, casual employees were required to work on Friday, Saturday and
Sunday, and employees took time off during the week. During cross-examination, Mr
Williams stated that he believed that the Alpine Award “probably suits our business better”5
as it had lower base rates on the weekends, which was the busiest time, and would increase
profitability. He accepted that there had been an expansion in other businesses outside of the
winter season, including cafes and accommodation, due to activities such as mountain biking
3 Witness Statement – 20 March 2017, Exhibit P.
4 Witness Statement – 21 March 2017, Exhibit T; Oral evidence – Transcript 1 November 2017 at PN2120–2195.
5 Transcript 1 November 2017 at PN2129.
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and hiking, but stated that those activities did not provide profit, just a “little cream”.6 He also
stated in cross-examination that under the Hospitality Award he was only allowed to charge
employees a maximum amount for their accommodation and he stated he might charge a little
bit more if he was covered by the Alpine Award.
Ian Foster
[16] Ian Foster7 was the owner of Valley Management Pty Ltd, a property management
business that managed holiday letting for apartment owners in the Lantern complex at
Thredbo. He gave evidence that Lantern’s employees were employed under the Hospitality
Award. Lantern employed 7 people all year round, which increased to 10 people in summer
and to 17 people in winter. The employees were mainly engaged in cleaning and
housekeeping roles working two to four days per week. He stated that half of his seasonal
workers were backpackers and the other half were young Australians who wanted to spend
time in the ski fields in their down time. He provided subsidised rent to the employees, and
most employees who worked for him also worked for other employers in Thredbo on a casual
basis. He stated that competitors such as Kosciusko Thredbo Pty Ltd (the operator of the
Thredbo alpine resort) owned and operated other businesses within the village. He understood
their employees were engaged under the Alpine Award. In cross-examination, Mr Foster
stated that he would like his employees to be engaged under the Alpine Award as he believed
there were a number of benefits to his business such as a seasonal, part-time classification and
a lack of penalty rates for weekend work. He stated that if he was not paying penalty rates he
would be able to offer his employees additional benefits for working for him such as lift
passes and subsidised accommodation.
Narelle Therese Clark
[17] Narelle Therese Clark8 was the manager of Cedarwood Apartments, an on-mountain
apartment complex located at the top of the Falls Creek Village. She gave evidence that all the
apartments in the complex were privately owned. All employees were engaged on a casual
basis under the Hospitality Award due to the seasonal nature of the business and the
fluctuating cash flow. She stated that because of penalty rates, her employees could make up
to $33.00 an hour, and because of these high rates she tried to postpone as many of the
Sunday hours to be worked to Mondays instead. She also gave evidence that the high rates of
pay on weekends were the biggest issue for her as a business owner. During cross-
examination Ms Clark stated that she would like to engage her employees under the Alpine
Award so that there was more flexibility for herself and her staff. She understood that her staff
would rather work during the weekend and have days off during the week when it was quieter
on the ski fields. She also gave evidence that there had been some growth in business during
the summer months, and that she had employed an additional casual employee during that
period.
Rob Aivatoglou
6 Transcript 1 November 2017 at PN2154.
7 Witness Statement – 28 March 2017, Exhibit K; Oral evidence - Transcript 31 October 2017 at PN1308-1489.
8 Witness Statement – 30 March 2017, Exhibit U, Oral evidence - Transcript 1 November 2018 at PN2198-2294.
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[18] Rob Aivatoglou9 was the owner of George’s Ski Hire in the Mount Buller Ski Resort.
The business primarily hired out ski and snowboard equipment and accessories, but also had a
retail arm where skiing and snowboarding equipment was sold and repaired and which rented
out lockers. Mr Aivatoglou stated that his business was only open during the winter season, as
it was not commercially viable to be open for the rest of the year. The business employed 12-
14 staff on a casual basis under the General Retail Industry Award 2010 (Retail Award), and
these employees played a crucial role in his ability to service his customers. He stated that the
vast majority of his employees were in Mount Buller to enjoy the winter snow season, and
that he subsidised two apartments for their use. He also gave evidence that there was high
competition with other companies, and that his business was very heavily impacted by penalty
rates on the weekends, as this was when he needed his employees the most. During cross-
examination Mr Aivatoglou stated that his competitors did not pay the same rates as he did,
which was a significant disadvantage, and he was also only recouping a tiny fraction of the
cost of the subsidised housing for his employees. He stated that if he had relief from penalty
rates he would make his business more competitive and that he could afford to provide a
better service to the client as he could employ more people on Sundays. He did not concede
that the summer season was now becoming more popular with summer activities and stated
that opening at that time of the year “doesn’t really stack up”.10
Sandra Connor
[19] Sandra Connor11 was the manager and owner of Black Bear Inn in Thredbo, which
was an off-mountain accommodation complex and commercial ski lodge. The business had
accommodation facilities, a bar and a restaurant which opens all year round apart from in May
and October when there was a lack of visitors and bad weather. She stated that all employees
were employed under the Hospitality Award. In summer periods she only had five staff
members on the payroll whereas during winter she employed an additional eleven staff
members of whom she estimated 75 per cent also skied or snowboarded while at Thredbo.
She said that she assisted her employees with discounted lift passes and subsidised
accommodation and meals. She gave evidence that Kosciuszko Thredbo Pty Ltd was one of
her biggest competitors. It employed staff under the Alpine Award which she considered gave
them an advantage. During cross-examination Ms Connor stated that she would like to engage
her staff under the Alpine Award as she believed it would reduce operating costs as well as
“level the playing field”12 in regards to the employment of staff in the area.
Stephen Gary Pennington
[20] Stephen Gary Pennington13 was the Director of DPSI General Pty Ltd, which owned
and operated a general store in Mount Hotham and a hotel in Dinner Plain. He gave evidence
that the general store operated a licensed food and beverage outlet, a post office, a small
supermarket, eight accommodation apartments for letting to the general public, staff
accommodation and business conference/function facilities. Due to the seasonal nature of
9 Witness Statement – 31 March 2017, Exhibit R; Oral evidence - Transcript 1 November at PN1947-2039.
10 Transcript 1 November 2017 at PN2013.
11 Witness Statement - 31 March 2017, Exhibit C; Oral evidence - Transcript 30 October 2017 at PN335-461.
12 Transcript 30 October 2017 at PN377.
13 Witness Statement - 30 March 2017, Exhibit D; Oral evidence - Transcript 30 October 2017 at PN557-774.
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activity at Mount Hotham there were, in addition to the two directors, ten employees during
the summer period and approximately thirty-eight staff during the peak winter period. The
hotel in Dinner Plain which he managed had six staff employed over the non-winter periods
and approximately fifteen staff over the winter period. According to Mr Pennington,
employees preferred to work evenings and on weekends in order to utilise the weekdays to ski
and snowboard when there were no crowds. He also stated that in his experience, a significant
number of staff were employed by more than one employer during the winter season. In
cross-examination Mr Pennington stated that he applied the Hospitality Award to his
employees, but he believed he should be able to apply the Alpine Award to his businesses
because they were located in feeder towns to the Mount Hotham alpine resort. He conceded
that he had experienced an increase in the number of customers who came to his stores
outside of the winter season when going to a music festival or hiking.
Steve Owen
[21] Steve Owen14 was one of three directors of Thredbo Burger Bar Pty Ltd, a food outlet
in Thredbo Village. He gave evidence that the business was highly seasonal. During the
summer months it was operated by the directors without any additional staff; however, in the
winter months, he employed a further eight or nine casual employees. He stated that the
majority of their workforce consisted of young, transient workers who were looking to spend
a season in the ski fields, for whom they provided a discounted ski pass, or people from
overseas on working holiday visas. He said that there was a lot of competition for staff in the
area.
Keith Evanson Archibald
[22] Keith Evanson Archibald15 was the owner of the Summit Ridge Alpine Lodge in Falls
Creek, which consisted of both accommodation facilities and a restaurant. Mr Archibald gave
evidence that the industry was very unique and competitive. He engaged all employees under
the Restaurant Industry Award 2010 (Restaurant Award). His business was entirely
dependent on the winter season, and until 2016 it was only open during the winter season. The
business had just started opening over Easter and Christmas, but at Christmas there was only a
twenty per cent occupancy rate. He gave evidence that during the winter months he employed
nine people on a casual basis and that the winter period was the only time he employed staff.
He said that half of his employees were here to work a ski season, while the housekeepers
were from Taiwan because, as he stated, “Australian workers don’t work hard enough”. He
stated that he was frustrated by Sunday penalty rates as it did not feel like a Sunday in Falls
Creek Resort village, and it was more administratively burdensome to pay penalty rates.
Greg Quinn
[23] Mr Gregg Quinn16 was the director of Chalets Thredbo Pty Ltd, which operated three
accommodation businesses in Thredbo. All employees were engaged under the Hospitality
Award. He gave evidence that the profitability of the businesses was dependent on the winter
14 Witness Statement – 24 March 2017, Exhibit O.
15 Witness Statement – 27 March 2017, Exhibit S; Oral evidence - Transcript 1 November 2017 at PN2042-2115.
16 Witness Statement – 12 April 2017, Exhibit M; Oral evidence - Transcript 31 October at PN1607-1753.
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snow season. In addition to the eight full-time employees working in the businesses, he
employed an extra five casual employees in the summer months an additional 25 casual
employees in the winter months. He stated that the employees worked there mainly to enjoy
the ski season or were Taiwanese travellers. Guests had to stay either two nights if they
arrived on a Friday or five or seven nights if they arrived on a Sunday. He said that guests
who would like to book in for two nights on a Monday and Tuesday would currently be
refused because of staffing requirements, as the individual owners of the accommodation
facilities would only pay his business a fixed fee and refused to pay additional fees for
weekend cleaning work. Mr Quinn gave evidence that he faced significant commercial
competition from business operated by Kosciuszko Thredbo Pty Ltd, which held the lease of
the land until 2057. During cross-examination Mr Quinn stated that he would like to engage
his employees under the Alpine Award because of the flexibility that would be provided to
him to employ more people for more hours, and because he could potentially change his
business model. Currently he only employed people on Fridays and Sundays for those guests
who arrived and departed on those days. If the guests would prefer more flexibility, he stated
that he could accommodate this under the Alpine Award by not paying penalty rates, which
meant he could engage more employees.
John Leggett
[24] Mr John Leggett17 was the Managing Director of Candlelight Lodge at Thredbo
Village, which provided accommodation, a restaurant and a bar to visitors to Thredbo. He
gave evidence that although Candlelight Lodge was open year round, the business was highly
seasonal with 80 per cent of the revenue being derived in the months July-August. He stated
that he engaged additional employees on a casual basis during the peak winter periods, and
that those who applied for positions tended to be people who wanted to go skiing or
snowboarding during the ski season. He stated that employees liked the flexibility so they
could spend as much time up on the mountain when the conditions were good, and he
accommodated that as best he could. He gave his employees many other benefits on top of
award wages such as accommodation, all meals, and free lift passes or discounted car passes
and discounted lift tickets. During cross-examination Mr Leggett stated that he wished to
engage his employees under the Alpine Award because he believed it to be simpler, less
administratively burdensome in terms of record-keeping with differing rates, and fairer given
the special environment in Thredbo. He also stated that his business was profitable.
Emily Slaytor
[25] Ms Emily Slaytor18 was a lawyer who employed by Australia Business Lawyers &
Advisors Pty Ltd, which acted for the primary applicants in the proceedings. She stated that
she was instructed to undertake research regarding the number of visitors to different alpine
resorts in Australia during 2016. She stated that she contacted the Alpine Resorts Co-
ordinating Council (ARCC), the Victorian Alpine Resort Management Boards and the NSW
National Parks and Wildlife Service. Her evidence was not cross-examined and showed the
seasonality of the seasons in terms of visitors to the parks.
17 Witness Statement – 7 April 2017, Exhibit L; Oral evidence - Transcript 31 October 2017 PN1496-1581.
18 Witness Statement – 13 April 2017, Exhibit B.
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Luis Izzo
[26] Mr Luis Izzo was a lawyer employed by Australia Business Lawyers & Advisors Pty
Ltd. He gave evidence that he was required to attend the Perisher Valley Ski Resort for a
period of three days for the purpose of taking photographs of lift queues during those days.
Mr Izzo’s photos show that the ski lifts were significantly busier, and the queues significantly
longer, on the weekend compared to week days.
ASAA Evidence
Gavin Girling
[27] Gavin Girling19 was employed as the HR Manager of Perisher Blue Pty Ltd. Mr
Girling’s statement of evidence gave an overview of the ASAA and its members. Mr Girling
said that he had been appointed by the members of the ASAA to be their nominated
spokesperson and contact liaison for matters concerning the 4 yearly review. In support of
ASAA’s submission regarding the unique nature of the snowsport industry, Mr Girling’s
statement dealt with the weather dependent nature of the industry, the short seasonal nature of
the industry, the reliance on investment and the changing nature of the climate. Mr Girling’s
statement also dealt with the industrial regulation of the snowsport industry in NSW, and set
out the history of awards covering the industry.
[28] Mr Girling gave evidence regarding the high cost that alpine lifting businesses bore in
order to make ski slopes operable. This was highly dependent on the weather, so that if snow
did not fall, alpine lifting businesses depended heavily on snowmaking to stop a loss of
revenue, and even snowmaking was reliant on favourable weather conditions. He gave
evidence that Perisher’s capital costs in snowmaking totalled approximately $25 million in the
last ten years. He also stated that alpine resorts required hundreds of millions of dollars in
investment to establish and maintain ski lifts, snowmaking equipment, snow grooming
equipment and other necessary infrastructure. Over the last five years alpine lifting businesses
had spent an average $13.94 million each on capital investments associated with snowsports
operations including ski lifts, snowmaking and building investments.
[29] The alpine lifting companies which were members of the ASAA made 97% of their
total revenue in the ski season. He also stated that the alpine resorts had a significant impact
on NSW and Victorian economies. It was estimated that in 2014 the alpine resorts had a
$1.248 billion positive impact on the state economy of NSW and a $668 million impact on the
state economy in Victoria, generating employment for 10,600 employees in NSW in 2015 and
5967 employees in Victoria.
[30] Mr Girling gave a brief history of the Alpine Award, and in particular referred to the 4
September 2009 Award Modernisation Full Bench decision of the AIRC20 which stated that
the seasonal nature of the operations covered by the Alpine Award was “taken into account in
19 Witness Statement –21 December 2016, Exhibit F; Oral evidence - Transcript 30 October 2017 PN789- 1080, Transcript 2
November 2017 PN3400-3483
20 [2009] AIRCFB 826 at [263]
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relation to the types of employment permitted and the conditions which apply to them,
including the pay arrangements”.
[31] During cross-examination Mr Girling gave evidence that employees of alpine resorts
need to be versatile so that, for example, employees who were lift operators could also
perform cleaning functions. Mr Girling also stated that most employees at the Perisher resort
that were engaged in a particular role generally performed work in that role, but at smaller
resorts such as Baw Baw, Mount Selwyn and Charlottes Pass the position could be different
and employees might need to be more flexible.
Mount Hotham Board’s evidence
Jonathon Hutchins
[32] Jonathon Hutchins21 was the Chief Executive Officer of the Mount Hotham Board. He
gave evidence that the Board was established under s 34(5) of the Alpine Resorts
(Management) Act 1997 (Vic) (ARM Act) and acted on behalf of the Crown in carrying out
its functions and powers. The ARM Act had the object to make provision for the
development, promotion, management and use of alpine resorts on a sustainable basis and in a
manner compatible with the alpine environment. The functions of the Mount Hotham Board
under the ARM Act included to plan for the development, promotion, management and use of
the alpine resort in accordance with the object of the Act, to manage the alpine resort in
accordance with the object of the Act, and to provide services in the nature of garbage
disposal, water supply, gas, drainage, sewerage, electricity, roads, fire protection and transport
for the resort and to charge on a user-pays basis for those services. Pursuant to the ARM Act,
the Mount Hotham Board provided water, sewerage, drainage, waste management,
snowmaking infrastructure, plant and vehicles and workshops, land management and
environmental services, corporate services including emergency management, gas services,
and public access and safety including ski patrol, public infrastructure, guest safety, village
maintenance, car parks and roads, resort entry and guest information, traffic control, transport,
trails and snow play, snow clearing, and cross country trails.
[33] In relation to ski lifts, the Mount Hotham Board entered into a lease with the Mt
Hotham Skiing Company Pty Ltd (MHSC) in 1992, under which the company leased land
from the Board to operate ski lifts. MHSC operated 13 ski lifts in the resort, and was also
responsible for ski instruction by instructors, ski hire and rental and food and beverage and
accommodation services to guests. However the Mount Hotham Board retained the
responsibility for public safety and ski patrolling, which included the opening, closing and
policing of ski slopes and trails, the maintenance of boundaries, and the provision of first aid
and transportation to injured patrons and search and rescue of missing persons. MHSC
performed snow grooming for the ski areas near the lifts, but the Mount Hotham Board
undertook the snow grooming for cross country trails. MHSC operated the snowmaking
machines, but the Board provided the water for this. The Mount Hotham Board had recently
purchased and operated itself a mechanised indoor ski ramp used for learners.
21 Witness Statement – 31 March 2017, Exhibit V; Oral evidence - Transcript 2 November 2017 PN3259-3398
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[34] Mr Hutchins gave evidence that the activities of the Mount Hotham Board were highly
dependent on weather conditions and seasonal factors, with the highest number of guests
entering the resort during winter in good snow conditions. The variability of winter weather
conditions created difficulty in matching employee numbers and rostered employees to meet
operational needs. It also had a significant effect on revenue, so that resort entry fees paid
would reduce in poor snow conditions. Regardless of visitor numbers, the Mount Hotham
Board was still required to expend a consistent amount of money to carry out its functions to
operate the resort. The Mount Hotham Board invested heavily in capital works to maintain
and upgrade the resort. It employed about 25 full-time staff and 80-100 casual staff during the
snow season. The employees included ski patrollers, traffic controllers, bus operators and
cleaners, cross-country snow groomers, snow clearers, snow framers, carpark snow cleaners,
a snow mobile trainer, a weather and snow reporter, winter tourism information officers,
resort entry ticket sellers, car parkers, vehicle accountability officers, roadside assistance,
snowplay and toboggan operators, indoor ski/snowboard instructors, a snow events and
activities coordinator, a winter community information and activity coordinator, and snow
safety community officers. Many of these functions were specialised and required particular
qualifications, but some employees were multi-skilled.
[35] Mr Hutchins said he understood that some of the Mount Hotham Board’s workforce
fell within classifications under the State Government Agencies Award 2010, but not all fitted
within these classifications. The Mount Hotham Resort Management Board Enterprise
Agreement 2013 (Mount Hotham Agreement) applied to the employees except those on
executive contracts. Clause 1.1(b) of the Mount Hotham Agreement provided that, for the
purpose of the better off overall test, it had been matched against the Alpine Award and the
State Government Agencies Award. He said that there had been some disputation in enterprise
bargaining about which award was the correct reference award, and he hoped the application
which the Board had made would clarify the position, but he did not foresee that there would
be any saving on labour costs.
Submissions
Primary applicants
[36] The primary applicants submitted that the amended coverage of the Alpine Award
which they proposed met the requirements of s 143 of the FW Act, in that it defined the class
of employers covered by the award geographically. The proposed geographic boundaries of
the award were easy to define because of the extreme topography and climatic conditions
associated with alpine resort areas, so that there was little business outside the established
boundary of a resort area. The class of employers specified in their draft determination
represented a distinct industry, the alpine tourism industry. This industry, as a sub-set of the
broader tourism industry, had the following characteristics:
it serviced almost exclusively snow sports enthusiasts;
it operated at extremely high altitudes;
it was subject to extreme weather conditions;
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it had its own unique accommodation, restaurant and retail characteristics, including
ski lockers, flooring suitable for snow and boots, and the stocking of ski-specific
sporting equipment; and
a defined season of operation, ranging from the long weekend in June to the long
weekend in October.
[37] It was submitted that in conducting the award modernisation exercise in 2009, the
AIRC had recognised the existence of a “snowsports industry”, but did not give any detailed
consideration as to what that encompassed or whether it was an accurate reflection of the
alpine tourism industry. The submissions of the ASAA in the award modernisation process of
6 March 2009 contended that a stand-alone award should be made to cover alpine resorts
because of the flexibility required due to the seasonal and weather-dependent nature of the
industry, the unique nature of the snowsports industry, the consequent high variability in staff
number, the degree to which tourism levels were dependent on the quantum of snow falls, and
the requirement to perform work in extreme climatic conditions requiring specialised skills.
Its submissions of 8 April 2009 also referred to the fact that terms and conditions had been
negotiated over a number of years with the AWU, the amount of work depended on the snow
conditions on a particular day, weekends were the busiest times at the resorts, and the work
was undertaken by snow sports enthusiasts who wished to have the flexibility to work on
weekends and ski on weekdays. The ASAA’s further submissions of 7 July 2009 also
contended that a stand-alone Alpine Resorts Award should be made because the creation of
alpine lifting facilities required major capital investment, flexibility was required to re-
allocate work when snow conditions were poor, and staff preferred to work on weekends to
maximise skiing experiences outside peak periods. The AIRC Full Bench decisions in the
award modernisation process which led to the making of the Alpine Award showed that
reliance was placed on the fact that employees were engaged in a wide range of occupational
groupings, there was considerable fluctuating demand for employee skills and services with
peaks during weekends and public holidays, and that the industry was marked by a high level
of casual and seasonal employment and flexible hours of work. The AIRC did not take into
account the capital investment of resorts in ski lifting equipment.
[38] The primary applicants submitted that, on the evidence, the alpine tourism businesses
it represented had the same characteristics that were identified as specific to alpine resorts:
their operations were seasonal in nature, in that visitor numbers in the areas in which
they operated had a very large peak in July and August and a smaller peak in
September, and occupancy rates in alpine accommodation and revenue patterns in all
alpine businesses reflected this;
there was fluctuating demand for employees’ skills and services depending on snow
conditions, and employees themselves preferred to work on weekends and have days
off during the week to ski when it was less busy;
alpine tourism businesses had a high level of casual and seasonal employment, with a
high proportion of employees engaged over winter when they wished to have a
working holiday, and the hours of work offered to these employees fluctuated
depending on snow conditions; and
[2018] FWCFB 4984
13
employees could be engaged in a wide range of occupational groupings, in that some
employees had portability across retail, cleaning and food and beverage roles, and
some also worked for other businesses at the same time including alpine resorts.
[39] The ASAA’s opposition to the primary applicants’ claim, it was submitted, was based
on commercial considerations. Contrary to its submissions, the scope of the alpine tourism
industry was never properly considered in the award modernisation process, and the matters
relied upon by the AIRC in making the Alpine Award were equally applicable to other alpine
tourism businesses. Although the primary applicants accepted that the flexibilities in the
Alpine Award were derived from pre-reform awards which applied to alpine lifting
companies, this was not determinative, and the function of the Commission was to ensure that
modern awards provided a fair and relevant safety net. That required all matters relevant to
the modern awards objective to be considered, including the regulatory burden placed on
alpine tourism businesses compared to their much larger alpine resort competitors operating
in their immediate vicinity. The “snowsports industry” did not just include alpine resorts, but
encompassed businesses trading in alpine villages which were critical to the operation of
alpine tourism and had the same unique features. The capital investment made by alpine
resorts in snow lifting was not a relevant factor with respect to the determination of modern
award coverage.
[40] In relation to the matters required to be taken into account under s 134(1), it was
submitted that the conclusions to be reached were as follows (by reference to the paragraph
lettering in s 134(1)):
(a) The terms and conditions set by the Alpine Award were fair and relevant
having regard to the nature of the work performed and the unique nature of the
“snowsports industry”. The extension of the Alpine Award to retail and
hospitality employees in alpine tourism businesses would not have any
significant detrimental impact on employees.
(b) The coverage variation proposed would not have any negative impact on the
incidence of collective bargaining, and might encourage it.
(c) The overwhelming preference of employees within alpine tourism businesses
is to work on evenings and weekends, and the coverage variation proposed
would be likely to increase the hours offered to employees of weekends. It
would also enhance “social harmony” in alpine resort precincts by establishing
uniform terms and conditions.
(d) Seasonal variations in demand, climatic conditions and differences in demand
between weekdays and weekends require flexibility, and employees wished to
work flexibly. The coverage variation proposed would promote flexibility by
removing the “existing irrelevant regulations that hinder such flexibility”.
(da) The need to provide additional remuneration did not arise in the alpine tourism
industry because employees preferred to work on evenings and weekends.
[2018] FWCFB 4984
14
(e) The current coverage arrangements meant that hospitality and retail employees
in resorts were regulated differently than those in other alpine tourism
businesses, and the proposed coverage variation would rectify this.
(f) The proposed coverage variation would have a significant positive impact on
business by removing the current unfair anti-competitive situation, creating a
level playing field, fostering competition, forcing alpine resorts to improve
productivity to compete with alpine tourism businesses, provide more hours
for employees to work on weekends, and reduce the employment costs and
regulatory burden of alpine tourism businesses.
(g) The proposed coverage variation would make the coverage clause of the Alpine
Award simpler and easier to understand, remove the complexity of the current
situation where ownership of the relevant establishment determined which
award applied, and make a single award applicable to all retail and hospitality
employees in alpine resort precincts.
(h) The proposed coverage variation would allow alpine tourism businesses to
grow and improve their performance, promote employment growth and
business sustainability, and improve the performance of the alpine tourism
industry.
Mount Hotham Board
[41] The Mount Hotham Board submitted that it was currently covered by the State
Government Agencies Award, having previously been covered by the Victorian Alpine
Resorts Award 1999. Since the termination of the latter award on 10 August 2011, the Alpine
Award was the most appropriate award to cover the Mount Hotham Board because it fully and
appropriately covered its employees’ classification and because the Mount Hotham Board
operated in the alpine resorts industry. The Mount Hotham Board was not a party to the award
modernisation process that took place in 2009 before the AIRC, and as a result the AIRC did
not give consideration to its position (or that of similar employers).
[42] It was submitted that the Mount Hotham Board should be covered by the Alpine
Award because:
it operated in the alpine industry and, as with ski lift operators, it managed alpine
resort infrastructure;
while it did not operate an alpine lift, it was responsible for and conducted many of the
activities directly related to alpine lifting;
it was directly impacted by the high variability of snow and weather conditions in the
same manner that the snowsports industry was;
it undertook significant capital expenditure on capital works that directly benefitted
alpine lifting and the alpine resorts industry;
[2018] FWCFB 4984
15
its workforce most appropriately fitted within the classifications under the Alpine
Award, and the flexible and seasonal nature of its workforce supported it being
covered by the Alpine Award;
not all of its employees fitted within the classifications in the State Government
Agencies Award, in particular mechanics and general construction hand/labourer
positions, with the result that they were award free in circumstances where the same
employees engaged by MHSC were covered by the Alpine Award.
ASAA
[43] The ASAA opposed both the primary applicants’ application and that of the Mount
Hotham Board. It submitted that the snowsports industry was unique in nature, in that it was
highly seasonal, the ski season ran only for a short period of time (typically early June-early
October), it was weather dependent and highly vulnerable to changing climatic conditions, it
experienced a substantial peak in business during weekends, the employees of alpine lifting
companies fell within a large range of occupational categories and performed highly
specialised work in extreme weather conditions and the work was often undertaken by
snowports enthusiasts who wished to have the flexibility to work on weekends and ski on
weekdays. Additionally, the ASAA submitted, a key feature that made alpine lifting
companies unique was their operation of and reliance upon alpine lifts and snow making
facilities, which require the expenditure of significant capital to install, operate and maintain.
[44] The award history, the ASAA submitted, demonstrated that it had historically been
recognised that the award applying to the snowsports industry and alpine lifting companies
needed to have tailored terms and conditions that ensured a number of flexibilities in the
employment arrangements which were in the interests of employers and employees. Pre-
modern awards had contained a broad range of classifications, including those that may
otherwise have fallen within other occupations and industries such as retail, clerical,
mechanical and transport industry employees. The rationale behind the inclusion of this broad
range of classifications was to enable alpine lifting companies to utilise their employees
across their resorts effectively and commercially, so that during periods of poor snow and bad
weather employees could be shifted from alpine lifting and ski slope functions to hospitality
and retail functions in order to mitigate the loss in revenue. This rationale was inapplicable,
the ASAA submitted, to the alpine tourism businesses represented by the primary applicants.
[45] The ASAA also pointed to a number of difficulties which would flow from the grant
of the primary applicants’ application. It identified a range of towns with significant active ski
resort service industries whose seasonal and daily levels of tourism varied as a result of the
snow season which were outside the primary applicants’ proposed radius of coverage but who
could equally claim that they should fall within the coverage of the Alpine Award.
[46] Specifically in relation to the Mount Hotham Board’s application, the ASAA
submitted that the Board did not perform the same functions as alpine lifting companies, was
not revenue-dependent on alpine lifting facilities, had different total employment and seasonal
employment numbers, had a different history of industrial regulation and did not have the
primary purpose which the Alpine Award and its limited coverage did.
[2018] FWCFB 4984
16
SDAEA
[47] The SDAEA likewise opposed both applications and supported the submissions of the
ASAA. Additionally it submitted that:
the primary applicants’ proposed coverage variation would change the Alpine Award
from one based on industry coverage to one based on geographic coverage;
the current coverage of the Alpine Award was unambiguous and intentional, and the
applications to vary it were contrary to the principles upon which the award was made;
insofar as the SDAEA’s interests were concerned, the applications adversely affected
employees covered by the Retail Award, the Fast Food Industry Award 2010 (Fast
Food Award) and the Hair and Beauty Industry Award 2010 (Hair and Beauty
Award), which contained terms and conditions of employment that were appropriate
for such employees;
the Alpine Award, which had inferior rates of pay and penalty rates, was established on
the strict basis that it was tailored for the unique circumstances of alpine lifting
companies;
the primary applicants’ application would extend the coverage of the Alpine Award not
only to businesses in locations with significant infrastructure and facilities, but also to
alpine areas with very minor infrastructure and facilities including Mount Selwyn,
Dinner Plain Alpine Village, Mount Stirling, Mount Baw Baw Village and Ben
Lomond;
the effect of the Mount Hotham Board’s application would be to include all alpine
resort management boards within the coverage of the Alpine Award, of which there
were six, although the other five boards had not made any application to be included in
the award’s coverage;
the Alpine Resorts (Management) Act 1997 made provision for an Alpine Resorts Co-
ordinating Board, which represented all alpine resorts under the Act, and it should
have been the entity to have made any application to vary the coverage of the Alpine
Award;
no variation in coverage should be granted in the absence of any submissions from the
other alpine resort boards;
none of the applicants’ evidence or submissions addressed the possible effect on
workers should the coverage of the Alpine Award be expanded, or attempted to
compare the current and proposed award terms and conditions and the effect on
workers covered by the SDAEA; and
in an industry where weekend work is common, a move in coverage to the Alpine
Award would result in a complete loss of weekend penalty rates and a consequent
reduction in take home pay.
[2018] FWCFB 4984
17
AWU
[48] The AWU opposed the primary applicants’ application. It submitted that the proposed
coverage variation was clearly seeking to reduce the award conditions for employees
employed by businesses operating in alpine areas. These businesses and their employees were
more appropriately covered by their existing industry awards, namely the Retail Award, the
Hospitality Award, the Fast Food Award, the Restaurant Award and the Hair and Beauty
Award. A detailed comparison of the rates and conditions of these awards with the Alpine
Award was undertaken by the AWU, and this showed that the base rates of pay in the Alpine
Award were either the same as, or lower than, the other awards. In respect of weekend penalty
rates, all the other awards provided for such rates at varying levels whereas the Alpine Award
did not. There were also deficiencies in terms of morning and evening penalty rates between
the Alpine Award and at least some of the other awards. The AWU submitted that, given that
on the evidence the great majority of the work performed by employees of alpine tourism
businesses was during penalty hours, this would lead to a drastic reduction in take-home pay
for affected employees, which was contrary to the modern awards objective. In its
submissions, it modelled the effect of the proposed change in coverage on a Level 3 worker
under the Hospitality Award who worked three weekdays and on Saturday and Sunday, and
calculated that the reduction in pay would amount to $169.66 per week.
[49] The AWU’s primary submission was that it supported the Mount Hotham Board’s
application. It submitted that the award modernisation Full Bench had intended to create a
comprehensive award which included alpine resort management boards, but the coverage of
the Alpine Award had not reflected this intention. Recent enterprise agreements covering the
Mt Baw Baw and Falls Creek Management Boards, in which the AWU was involved, had
been made on the basis that they were underpinned by the Alpine Award. The current
agreement covering the Mount Hotham Board was underpinned by a range of awards
including the Alpine Award, the State Government Agencies Award, the Miscellaneous Award
2010 and the Victorian Alpine Resorts Award 1999 (which had been terminated). The
remaining Victorian boards were covered by agreements underpinned, at Lake Mountain, by
the Victorian Alpine Resorts Award 1999 and, at Mount Buller and Mount Stirling, by the
Victorian State Government Agencies Award 2015. In a decision issued in 2010, a single
member of the Commission had determined that, if it was a trading corporation, the Falls
Creek Resort Management Board was covered by the Alpine Award.22 The Mount Hotham
Board’s application therefore was supported on the basis that it was consistent with what the
AWU understood to be the existing position.
[50] However in a later written submission filed by the AWU on 8 December 2017, the
AWU responded to a query from us as to whether its position concerning the Mount Hotham
Board’s application would change if we concluded that the Alpine Award did not currently
cover resort management boards. The AWU submitted that on that basis it would oppose the
application, since it had a general resistance to any practical expansion of the coverage of the
Alpine Award. In that scenario, if there was any deficiency in the coverage of the
classifications in the State Government Agencies Award, the best recourse would be to vary
the classification structure in that award.
22 Falls Creek Resort Management [2010] FWA 2847
[2018] FWCFB 4984
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United Voice
[51] United Voice opposed the primary applicants’ application, and supported the
submissions of the AWU and the SDAEA. It also contended that the making of the Alpine
Award was a “mistake”, and that the Commission should in the review “reassess the need for
this peculiar modern award rather than seek to broaden its application” and revoke it
entirely.
Consideration
General principles
[52] The principles applicable to the conduct of the 4-yearly review have been stated
comprehensively in a number of Full Bench decisions, most recently in the 4 yearly review of
modern awards – plain language re-drafting – standard clauses decision issued on 18 July
2018.23 The main propositions may be summarised as follows:
section 156(2) provides that the Commission must review all modern awards and may,
among other things, make determinations varying modern awards;
“review” has its ordinary and natural meaning of “survey, inspect, re-examine or look
back upon”;24
the discretion in s.156(2)(b)(i) to make determinations varying modern awards in a
review, is expressed in general, unqualified, terms, but the breadth of the discretion is
constrained by other provisions of the FW Act relevant to the conduct of the review;
in particular the modern awards objective in s 134 applies to the review;
the modern awards objective is very broadly expressed,25 and is a composite
expression which requires that modern awards, together with the NES, provide “a fair
and relevant minimum safety net of terms and conditions”, taking into account the
matters in ss.134(1)(a)–(h);26
fairness in this context is to be assessed from the perspective of the employees and
employers covered by the modern award in question;27
the obligation to take into account the s.134 considerations means that each of these
matters, insofar as they are relevant, must be treated as a matter of significance in the
decision-making process;28
23 [2018] FWCFB 4177 at [3]-[13]
24 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38]
25 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35]
26 [2017] FWCFB 1001 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group
[2017] FCAFC 161 at [41]–[44]
27 [2018] FWCFB 3500 at [21]-[24].
[2018] FWCFB 4984
19
no particular primacy is attached to any of the s 134 considerations and not all of the
matters identified will necessarily be relevant in the context of a particular proposal to
vary a modern award;29
it is not necessary to make a finding that the award fails to satisfy one or more of the s
134 considerations as a prerequisite to the variation of a modern award;30
the s 134 considerations do not set a particular standard against which a modern award
can be evaluated; many of them may be characterised as broad social objectives;31
in giving effect to the modern awards objective the Commission is performing an
evaluative function taking into account the matters in s 134(1)(a)–(h) and assessing the
qualities of the safety net by reference to the statutory criteria of fairness and
relevance;
what is necessary is for the Commission to review a particular modern award and, by
reference to the s 134 considerations and any other consideration consistent with the
purpose of the objective, come to an evaluative judgment about the objective and what
terms should be included only to the extent necessary to achieve the objective of a fair
and relevant minimum safety net;32
the matters which may be taken into account are not confined to the s 134
considerations;33
section 138, in requiring that modern award may include terms that it is permitted to
include, and must include terms that it is required to include, only to the extent
necessary to achieve the modern awards objective and (to the extent applicable) the
minimum wages objective, emphasises the fact it is the minimum safety net and
minimum wages objective to which the modern awards are directed; 34
what is necessary to achieve the modern awards objective in a particular case is a
value judgment, taking into account the s 134 considerations to the extent that they are
relevant having regard to the context, including the circumstances pertaining to the
28 Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999]
FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56]
29 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33]
30 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106]
31 See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was
considering a different statutory context, this observation is applicable to the Commission’s task in the Review
32 Ibid at [28]-[29]
33 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [48]
34 CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [23]; cited with approval in Shop,
Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [45]
[2018] FWCFB 4984
20
particular modern award, the terms of any proposed variation and the submissions and
evidence;35
where an interested party applies for a variation to a modern award as part of the 4
yearly review, the task is not to address a jurisdictional fact about the need for change,
but to review the award and evaluate whether the posited terms with a variation meet
the objective.36
[53] Some attention is required as to how these principles apply where it is proposed by an
interested party that the coverage of a class of employers and their employees be moved from
one modern award to another. Ostensibly, the variation is in respect of the Alpine Award, and
the primary applicants advanced their case on the basis that the grant of the variation would
be consistent with the achievement of the modern awards objective in s 134(1) in respect of
the Alpine Award. However, we consider that approach ignores an important element of the
analysis. In substance, the primary applicants seek that alpine tourism businesses that operate
in the immediate vicinity of alpine resorts covered by the Alpine Award, and their employees,
be removed from the modern awards which currently cover them, and be placed within the
coverage of the Alpine Award. The modern awards which currently cover those employers
and employees have been identified as the Retail Award, the Hospitality Award, the
Restaurant Award, the Fast Food Award and the Hair and Beauty Award. We consider
therefore that a relevant and significant element of the analysis is to give consideration to
whether the awards which currently apply meet the modern awards objective in respect of the
employers and employees who would be affected by the proposed variation and whether the
contraction of the coverage of those awards proposed by the primary applicants is necessary
to ensure that they include only such terms as are necessary to meet the modern awards
objective.37
[54] It is also necessary to consider s 163(1), which provides:
Special rule about reducing coverage
(1) The FWC must not make a determination varying a modern award so that
certain employers or employees stop being covered by the award unless the FWC is
satisfied that they will instead become covered by another modern award (other than
the miscellaneous modern award) that is appropriate for them.
[55] Section 163(1) constitutes a prohibition upon a variation to a modern award removing
employers and their employees from the coverage of a modern award unless the Commission
is satisfied that they will instead be covered by another modern award other than the
Miscellaneous Award 2010 that is appropriate for those employees and employers. It may be
accepted that a simultaneous variation to another modern award to extend its coverage to
35 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227
36 Ibid at [46]
37 Vehicle Manufacturing, Repair Services and Retail Award 2010 [2016] FWCFB 4418 at [38]-[49]; cf. Horticulture Award
2010 [2017] FWCFB 6037
[2018] FWCFB 4984
21
encompass those employers and employees may satisfy this condition, upon which the
prohibition does not operate, provided that the coverage by the other modern award is
appropriate for them. This, in effect, establishes an additional criterion of appropriateness to
the consideration of an application seeking a transfer of coverage from one award to another.
[56] Different considerations arise in respect of Mount Hotham Board’s application, for
reasons which will be explained later.
Application by the primary applicants
[57] We have earlier summarised the evidence given by the witnesses in relation to the
primary applicants’ application and the other material of an evidentiary nature contained in
the submissions. We make the following findings on the basis of that evidence:
(1) Alpine resorts in New South Wales and Victoria covered by the Alpine Award
have (to varying degrees) a range of independent retail, accommodation, food
and hospitality businesses operating in their immediate vicinity. These
businesses, which we will refer to as the relevant alpine businesses, may be
covered by the Retail Award, the Hospitality Award, the Restaurant Award, the
Fast Food Award and the Hair and Beauty Award.
(2) Alpine resorts covered by the Alpine Award employ persons across a large
range of functions, including a number of specialised on-slope functions, and at
least to a limited degree, may require employees to perform different functions
at different times. The relevant alpine businesses generally do not employ
persons across this wide range of functions, do not employ persons with
specialised on-slope functions, and do not require employees to multi-task. The
evidence tends to suggest that relevant alpine businesses are generally covered
by only one modern award.
(3) Alpine resorts covered by the Alpine Award have highly seasonal businesses
which are heavily weather dependent and earn most of their revenue during the
winter months. The relevant alpine businesses generally have the same
characteristics. However there are also alpine businesses which do not operate
in the immediate vicinity of alpine resorts which also share these
characteristics. In particular there are accommodation facilities, ski equipment
retail outlets and food outlets which operate in feeder towns to alpine resorts,
or simply at some distance away from alpine resorts, which are highly
dependent on the winter snow season and are affected by weather conditions.
We will refer to these as non-affected alpine businesses.
(4) A number of alpine resorts covered by the Alpine Award provide
accommodation, hospitality, food and retail services, and to that extent
compete with relevant alpine businesses and non-affected alpine businesses.
However relevant alpine businesses and non-affected alpine businesses are
commercially dependent on the operation of the ski slope and alpine lifting
functions of such alpine resorts.
[2018] FWCFB 4984
22
(5) There is no evidence that the profitability of relevant alpine businesses has
been affected by the fact that alpine resorts provide competing services whilst
operating under a different award.
(6) Alpine resorts employ large numbers of additional casual employees during the
winter snow season to meet the peak demand of that period. This is also
characteristic of relevant alpine businesses, and is likely to be characteristic of
non-affected alpine businesses.
(7) A large proportion of such seasonal casual workers, but not all, are ski or
snowboard enthusiasts on a working holiday. This is true of those employed
both by alpine resorts covered by the Alpine Award and by relevant alpine
businesses, and is also likely to be true of those employed by non-affected
alpine businesses.
(8) Many if not most of these seasonal casual employees prefer to work on
weekends so that they can ski or snowboard during weekdays when it is quieter
on the slopes. This preference is largely accommodated by both alpine resorts
and relevant alpine businesses, which have to put on staff to accommodate
peak customer demands on weekends. To a small degree, relevant alpine
businesses roster work on weekdays rather than weekends to avoid having to
pay weekend penalty rates, but the degree to which this is possible is minimal.
(9) The grant of the primary applicants’ coverage application, so that relevant
alpine businesses and their employees became covered by the Alpine Award,
would result in very significant reductions in take-home pay for such
employees, including the relatively small proportion of permanently-engaged
employees as well as seasonal casual employees. This is primarily the result of
the Alpine Award not providing for any weekend penalty rates although, in
some cases, the base rates of pay in the Alpine Award are also lower. There
was some evidence that, to a minor degree, some relevant alpine business
might be able to roster more employee hours on weekends if they did not have
to pay penalty rates, but in part this would only involve moving weekday hours
to weekends. There was no evidence that this would operate to ameliorate the
significant reduction in take-home pay.
(10) Some of the relevant alpine employers would prefer to be under the Alpine
Award. The primary reason for this is that the Alpine Award does not provide
for weekend penalty rates or evening penalty rates, so that being under that
award would allow labour costs to be reduced and remove the administrative
burden of paying differential rates.
[58] We are not satisfied that the modern awards which currently apply to relevant alpine
businesses and their employees fail to achieve the modern awards objective with respect to
those employers and employees. The evidence adduced before us, in respect of the relevant
alpine businesses, focused on employers covered by the Hospitality Award, the Retail Award
and the Restaurant Award. These awards cover businesses operating in a wide variety of
circumstances, including businesses which service seasonal tourists and engage large numbers
[2018] FWCFB 4984
23
of seasonal casual employees. All of these awards are highly flexible instruments which allow
for the use of full-time, part-time and (most relevantly) casual employment to the extent
determined by the employer, and the working of ordinary hours at any time in the day or week
during which relevant alpine businesses operate. The evidence did not support the proposition
that relevant alpine businesses were unable, to any discernible degree, to service their highly
seasonal and weather-variable customer base because of any provision of those three awards.
It was not suggested by the primary applicants that the classifications structure in each of
those awards was other than appropriate for the work performed by employees, or that the
rates of pay prescribed were not properly fixed rates of pay having regard to the value of the
work performed.
[59] It is also important to note that, to the extent that the primary applicants’ case focused
on the issue of penalty rates, that the penalty rates in the Hospitality Award, the Retail Award,
the Fast Food Award and the Restaurant Award have already been the subject of exhaustive
consideration as part of the 4-yearly review in the Penalty Rates Decision.38 In relation to the
Hospitality Award, the Full Bench determined that the existing Saturday penalty rate provided
a fair and relevant minimum safety net and accordingly achieved the modern awards
objective.39 It found that the existing Sunday penalty rate was neither fair nor relevant, and
reduced it (albeit that for casual employees the casual loading was made cumulative upon the
reduced penalty rate).40 In a separate decision, the lower Sunday penalty rate was the subject
of a phasing-in period, so that it will not become fully applicable until 1 July 2019.41
[60] In respect of the Retail Award, the Full Bench found that the Saturday penalty rates for
full-time and part-time employees met the modern awards objective,42 and in respect of casual
employees the Full Bench reserved its position only on the basis that it was arguable that the
casual loading should be added to the existing Saturday penalty rate for full-time and part-
time employees (which would have the effect of increasing the total rate).43 It was concluded
that the existing Sunday penalty rates were not fair and relevant, and taking into account the
considerations identified in s 134(a)-(h), they were reduced, except that with casual
employees the casual loading was now to be added to the reduced rate.44 The reduced penalty
rate was likewise to be phased in so that it did not become fully operable until 1 July 2020 for
full-time and part-time employees and until 1 July 2019 for casual employees.45 The Sunday
penalty rate was also reduced for Level 1 employees under the Fast Food Award,46 with the
full phase-in date being 1 July 2019.47
[61] The history with respect to the Restaurant Award is somewhat more complex. In the
course of the 2-yearly transitional review of modern awards, the Sunday penalty rate for
38 [2017] FWCFB 1001, 265 IR 1
39 Ibid at [900]
40 Ibid at [885]-[898]
41 [2017] FWCFB 3001, 272 IR 1 at [198]
42 [2017] FWCFB 1001, 265 IR 1 at [1700]
43 Ibid at [1716]-[1720]
44 Ibid at [1701]-[1702], [1715]
45 [2017] FWCFB 3001 at [208]
46 [2017] FWCFB 1001, 265 IR 1 at [1394]
47 [2017] FWCFB 3001 at [177]
[2018] FWCFB 4984
24
casual employees classified at Levels 1 and 2 had been reduced in a Full Bench decision
issued in 2014, but otherwise a reduction to the Sunday penalty rate had been refused.48 The
Penalty Rates Decision dealt with a further application by employer interests to reduce the
Sunday penalty rate to align it with the Saturday penalty rate (which was not challenged), and
the Full Bench determined that it was not satisfied on the material before it that any further
change was necessary to achieve the modern awards objective. However it decided to provide
employer parties with a further opportunity to establish that the weekend penalty rates in the
Restaurant Award did not provide a fair and relevant safety net.49 Ultimately the employer
parties chose not to take advantage of that opportunity, and in a subsequent decision a Full
Bench determined that no further reduction in the Sunday penalty rate in the Restaurant
Award was necessary in order to ensure that it achieved the modern awards objective.50
[62] Accordingly the position may be taken to be that, after extensive review proceedings,
the weekend penalty rate provisions in the Hospitality Award, the Retail Award, the Fast
Food Award and the Restaurant Award have been determined to constitute a fair and relevant
safety net in accordance with the modern awards objective. As it stands, the conclusions
reached in respect of those awards are equally applicable to the relevant alpine businesses
currently covered by those awards.
[63] The case advanced by the primary applicants simply did not engage with these
fundamental findings. They suggested in their submissions that the fact that it suited many
seasonal casual employees on working holidays to work on weekends was a point of
differentiation in terms of the degree of disutility associated with working weekends, but that
submission took no account of those employees – particularly permanent employees – for
whom this was not true, nor did it attempt to demonstrate that, for that reason alone, weekend
penalty rates should be entirely abolished by way of a shift of coverage to the Alpine Award.
That it may suit some casual employees to work on weekends is not unique to the relevant
alpine businesses, nor did this pass unnoticed in the decisions concerning penalty rates to
which we have referred. For example, in the 2014 Restaurant Award decision the critical
factor which caused the Full Bench to conclude that there should be an adjustment to the
Sunday penalty rate was that, for many lower-skilled casual employees who were students or
women with weekday family responsibilities, working on weekends was often their
preference.51 However, that did not cause the Full Bench to conclude that the Sunday penalty
rate should be reduced for all employees covered by the Restaurant Award, nor that for such
lower-skilled casual employees the Sunday penalty rate should be reduced to zero.52
Notwithstanding that they made no attempt to contend that the 2014 Restaurant Award
decision was wrong or overtaken by changed circumstances, the primary applicants sought, in
effect, that the weekend penalty rates for employees working in relevant alpine businesses
currently covered by the Restaurant Award be entirely abolished. That is an untenable
proposition.
48 [2014] FWCFB 1996, 243 IR 132
49 [2017] FWCFB 1001, 265 IR 1 at [1155]-[1157]
50 [2017] FWCFB 6034, 272 IR 81 at [16]
51 [2014] FWCFB 1996, 243 IR 132 at [132]-[139]
52 Ibid at [138], [140]-[142]
[2018] FWCFB 4984
25
[64] The only substantial proposition advanced by the primary applicants concerning the
fairness and relevance of the currently applicable awards as a minimum safety net for relevant
alpine businesses and their employees was that there was unfairness for such businesses
because they did not enjoy a “level playing field” with alpine resorts covered by the Alpine
Award with which they competed. As we have found, relevant alpine businesses compete
with some aspects of the businesses of alpine resorts (while at the same time being
commercially dependent upon them). However that does render their current coverage by
other modern awards other than the Alpine Award unfair, for reasons which include the
following:
(1) There is no evidence, as earlier stated, that the differences between the Alpine
Award and the other awards, to which reference has been made in respect of
penalty rates and other matters, have prevented relevant alpine businesses from
competing with alpine resorts and being commercially successful. The
businesses the subject of evidence before us were generally profitable and
successful businesses. There is likewise no evidence that alpine resorts have
used the different conditions in the Alpine Award in a predatory or anti-
competitive fashion.
(2) Alpine resorts are a different kind of employer to relevant alpine businesses
and other snowsports businesses. They operate large integrated businesses
which involve a highly diverse range of functions and permit staff, to some
degree, to perform different functions dependent on exigencies such as the
weather. The core element of their business is the operation of ski slopes,
which requires the performance of functions such as ski patrols, snow-making,
lift maintenance and operation, ski instruction and various administrative and
safety responsibilities. To the extent that they engage in the provision of food,
hospitality, accommodation and retail services, it is ancillary to this core
function. Alpine resorts may engage in these functions not in order to establish
separate profit sources but to provide an essential or significant service to users
of the core business function.53 It is clear that the establishment of the Alpine
Award was made in recognition of the fact that alpine resorts needed to have
persons “… employed in a wide range of occupational groupings…”. But for
this award, alpine resorts would be covered by a wide range of different
modern awards which would no doubt be productive of complexity and
inefficiency. Relevant alpine businesses do not, on the evidence, have any of
these fundamental characteristics.
(3) Relevant alpine businesses compete with other retail, accommodation, food
and hospitality businesses which service the retail, accommodation, food and
hospitality needs of snowsports participants but are not located in the
immediate vicinity of alpine resorts. There is no distinction of significance to
be made between relevant alpine businesses and such other snowsports
businesses: they have the same elements of winter seasonality and
susceptibility to the effects of weather and snow conditions so that, for
53 For example, Kosciusko Thredbo Pty Ltd took over the operation of a non-profitable newsagency in the Thredbo Village in
order to provide a service to patrons of its alpine resort.
[2018] FWCFB 4984
26
example, when the ski slopes are closed because of weather, this will have
effects for both businesses actually adjacent to an alpine resort and other
businesses catering to snowsports participants which are further away or in a
feeder town. There is no suggestion that the latter category of businesses face
unfair competition from alpine resorts, and the mere fact that they are not
located in the immediate vicinity of alpine resorts provides no objective
justification for them to be in a different award than relevant alpine businesses.
[65] We consider that the modern awards which currently cover relevant alpine businesses
provide a fair and relevant safety net for them and their employees in accordance with the
modern awards objective in s 134(1). In reaching that conclusion, we have taken the
following matters in s 134(1) into account in particular (by reference to the paragraphs in that
provision):
(a) the terms and conditions in those awards appropriately address relative living
standards and the needs of the low paid;
(c) the awards promote social inclusion through workforce participation, in that in
the businesses in question they unquestionably facilitate the employment of
working holidayers, young persons and other snowsports participants in
seasonal employment;
(d) the awards promote flexible work practices and the efficient and productive
performance of work, in that they facilitate seasonal employment and weekend
and evening work to meet customer demand;
(da) the awards provide additional remuneration for overtime work, unsocial,
irregular and unpredictable work, and work on weekends and public holidays
by way of a casual loading and appropriate penalty rates; and
(f) they do not adversely affect to any discernible degree productivity,
employment costs or the regulatory burden.
[66] The other matters in s 134(1) we consider to be neutral considerations.
[67] We also do not consider that the inclusion of relevant alpine businesses and their
employees in the Alpine Award would achieve the modern awards objective in relation to that
award, nor do we consider that the Alpine Award would appropriately cover them such as to
permit the prohibition in s 163(1) to be avoided. As earlier found, the grant of the primary
applicants’ claim would result in the large majority of employees who work on weekends
during the winter season in relevant alpine businesses suffering very significant reductions in
take-home pay. No countervailing beneficial effect of any significance, including the creation
of additional employment or the availability of additional working hours, is identifiable on the
basis of the evidence before us. The primary applicants’ case focused almost entirely on the
interests of relevant alpine businesses as employers in assessing the fairness of the Alpine
Award as a relevant safety net without taking into account the interests of employees, for
whom it would clearly be unfair, having regard in particular to s 134(1)(a) (the needs of the
low paid) and s 134(1)(da)(iii) (the need to provide additional remuneration for employees
[2018] FWCFB 4984
27
working on weekends). We do not consider that the grant of the primary applicants’ claim
would bring any discernible benefit in terms of increasing workforce participation (s
134(1)(c)) or promoting flexible modern work practices and the efficient and productive
performance of work in businesses which are already able to service highly variable seasonal
customer demands, including during weekends, in a profitable fashion (s 134(1)(d)).
[68] Additionally, relevant alpine businesses would be placed into an award which was
designed for alpine resorts, which as earlier explained are businesses of a significantly
different nature, and which is different to the awards which apply to businesses with which
they compete and have most in common, namely businesses servicing snowsports participants
which are not located in immediate vicinity of alpine resorts but are nearby or in feeder towns.
The safety net so applying would not be fair or relevant because it would create an uneven
regulatory burden (see s 134(1)(f)): the remaining s 134(1)(d) considerations we consider to
be neutral). Nor would coverage under the Alpine Award be appropriate, for the purpose of s
163(1), for this reason.
[69] We note that there is a possible additional difficulty arising from the primary
applicants’ proposed coverage clause for the Alpine Award which, as earlier set out, is
expressed by reference employers operating at identified geographic locations in the States of
New South Wales, Victoria and Tasmania. Having regard to the recent Full Bench decision in
4 yearly review of modern awards - Proposed Norfolk Island Award,54 it is arguable that the
proposed coverage clause is not consistent with s 154(1)(b), which provides that a modern
award must not include terms and conditions of employment that “are expressed to operate in
one or more, but not every, State and Territory”. However this issue was not the subject of
argument before us, and it is unnecessary for us to express a final view about it.
[70] For the reasons set out above, the primary applicants’ claim for a change in the
coverage of the Alpine Award is rejected.
Application by the Mount Hotham Board
[71] Prior to the establishment of the Alpine Award, the Mount Hotham Board and the
other alpine resort management boards established by the ARM Act were covered by the
Victorian Alpine Resorts Award 1999. That award was expressed (in clause 7) to cover the
Falls Creek, Mt Buller, Mt Hotham, Mt Stirling, Lake Mountain and Mt Baw Baw Alpine
Resort Management Boards in respect of employees in work done in or in connection with a
wide range of identified functions, including construction work, forestry, land maintenance
functions, general labouring work such as tickets sellers, carpark attendants and ski patrollers,
a variety of trades, and electricity, transport, and plumbing, sanitary and water supply
functions. Its coverage excluded persons who might be employed as officers in the Victorian
Public Service under the Public Sector Management and Employment Act 1998. It was the
subject of a common rule award declaration made in 2004,55 but it is not clear that this had the
practical effect of widening the scope of its operation.
54 [2018] FWCFB 4732
55 PR953330
[2018] FWCFB 4984
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[72] There were other previous awards of relevance to the Victorian alpine resorts. The first
was the Alpine Resorts (The Australian Workers’ Union) Award 2001, which was expressed
(in clause 6) to cover “alpine resorts”, but in respect of the three respondent employers listed
in clause 7: The MHSC Pty Limited, Falls Creek Ski Lifts Pty Limited and Mount Hotham
Skiing Company Pty Limited. These were private operators of alpine lifts and ski runs at
alpine resorts managed by alpine resort management boards in Victoria. The classification
structure included pay rates for employees performing lift operation, skier service, ski hire,
ticketing, administration, workshop, retail, racing, snow grooming, snow making and ski
instruction functions. The award was the subject of a common rule declaration made in
2005,56 but again the extent to which this widened the practical scope of the operation of the
award is not clear.
[73] The way in which these existing awards were considered in establishing the coverage
of the Alpine Award in the award modernisation process was summarised by Commissioner
Roe in a decision issued in 201057 concerning the relevant award to be applied for the purpose
of determining whether the Falls Creek Alpine Resort Management Board Outdoor Workers
Enterprise Agreement 2009-2012 passed the better off overall test. This agreement was
expressed to cover the “outdoor” workers employed by the board, the “indoor” workers being
covered by a separate agreement. The Commissioner said (footnotes omitted):
“[50] In the creation of the Alpine Resorts Award 2010 submissions were received
from the AWU and from Australian Ski Areas Association. The AWU in that process
argued that the Victorian Alpine Resorts Award 1999 should be seen as a benchmark
whereas the Australian Ski Areas Association argued that the Victorian Alpine Resorts
Award 1999 should not be within the coverage of the Modern Award because of its
linkage to the Victorian Public Sector. The submission of the Australian Ski Areas
Association was that at the three main Victorian Ski Resorts there were 118
employees in summer rising to 305 employees in winter of the Alpine Resorts Boards
which operated under the 1999 Award whereas there were 198 employees in summer
rising to 1602 employees in winter employed at those three resorts by the private
companies. The AWU submitted a draft of the Award which included a Part 7 which
effectively preserved the conditions for the Victorian Alpine Resorts Management
Boards who were covered by the 1999 Award for the next five years.
[51] The exposure draft of the Award was issued by the Full Bench in May 2009. In
the statement in respect of this the Full Bench determined “The draft Alpine Resorts
Award 2010 covers the seasonal snowsports industry in particular, though it will also
have application to alpine resorts that operate over the summer season…. We have
also decided not to make any special provision in relation to alpine resorts
management boards.”
[52] In my view this is a clear reference to the AWU submission for a separate
schedule to the Award to cover the conditions for the Victorian Alpine Resorts Award.
I do not read it as a decision to exclude the alpine resorts management boards from the
56 PR959029
57 [2010] FWA 2847
[2018] FWCFB 4984
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coverage of the Modern Award. The whole approach of the Full Bench was to ensure
that the whole of an industry (or in some cases occupations) should be covered by a
Modern Award and generally the Full Bench was reluctant to grant exceptions pressed
by various parties. In the decision of the Full Bench on the Stage 3 Modernisation of 4
September 2009 there was no further comment concerning the coverage of the
Award.”
[74] The Commissioner then considered submissions advanced before him against the
proposition that the Alpine Award covered the Falls Creek Alpine Resort Management Board,
and in doing so referred to an exchange in transcript during the award modernisation process
in 2009 between the legal representative of the ASAA and the then President of the AIRC,
Justice Giudice.58 The Commissioner then said:
“[54] I think that the words of the President make it clear that the term establishment
in this Award should not be read so narrowly as to imply that the employer must
operate the ski lifts directly itself for the employer to come within the scope of the
Award. Rather the term is to describe the nature of the resort and to exclude those
where there are not operating ski lifts. In this case there was undisputed evidence that
the Falls Creek resort includes many ski lifts and that the ski lifts are operated under a
contract controlled by the Applicant. A separate company is contracted to operate the
lifts. The Falls Creek Alpine Resort is an establishment whose business amongst other
things includes alpine lifting and the employer the Falls Creek Alpine Resort
Management Board is clearly an employer who along with others operates the Falls
Creek Alpine Resort. It is clear that the Falls Creek Alpine Resort Management Board
is the principal employer at the Resort and has by Statute been given the responsibility
for the management and operation of the alpine resort which includes alpine lifting.
[55] I am therefore satisfied that if the Applicant is a trading corporation then its
outdoor workforce is covered by the Alpine Resorts Award 2010. The reference Award
for transitional purposes is the 1999 Award. I did consider the applicability of
the State Government Agencies Administration Award 2010. That Award only applies
to employees in the classifications defined in that Award. The classifications are
restricted to administrative, technical and professional employees. None of the outdoor
workers could properly fit these definitions.”
[75] The Commissioner ultimately found it unnecessary to determine whether the Falls
Creek Alpine Resort Management Board was a trading corporation.
[76] Having perused the relevant submissions, hearing transcripts, statements and decisions
concerning the development of the Alpine Award in the award modernisation process in 2009,
we consider that the Commissioner was correct in determining that it was always intended
that the Victorian alpine resort management boards be covered by the Alpine Award. However
it is less clear that the definition of “alpine resort”, which we have earlier set out, gives effect
to that intention and results in the management boards being covered by the Alpine Award. As
was explained in the evidence of Mr Hutchins, the Mount Hotham Board is substantially in
the same position as that of the Falls Creek Alpine Resort Management Board, in that it has
58 Ibid at [53]
[2018] FWCFB 4984
30
effectively subcontracted the alpine lifting function via its lease to MHSC. We do not
understand the position of the other Victorian alpine resort management boards to be any
different. The evidence before us does not detail the precise commercial arrangements
underpinning the subcontracting or leasing of alpine lifting activities at these alpine resorts, so
in those circumstances it cannot readily be concluded that alpine lifting is part of the
“business” of any of the alpine resort management boards. The position is ambiguous.
[77] This position is clearly unsatisfactory. A modern award will not constitute a fair and
relevant safety net of terms and conditions where there is doubt about the scope of its
coverage, having regard, in particular, to the need to ensure a simple, easy to understand
modern award system that avoids unnecessary award overlaps (see s 134(1)(g)). The evidence
before us does not support the proposition that what was intended by the award modernisation
Full Bench in terms of the coverage of the Alpine Award should be disturbed. Certainly the
evidence of Mr Hutchins establishes that the Mount Hotham Board carries out a range of
functions critical to the operation of the Mount Hotham alpine resort, including functions
significant to the operation of the ski slopes, as part of its statutory responsibility to manage
that resort. There is no evidence that the other management boards established under the
ARM Act are different in any relevant way. Accordingly, we consider that it is necessary in
order to achieve the modern awards objective with respect to the Alpine Award to vary its
coverage provisions to clarify and confirm that it covers those alpine resort management
boards. In doing so, we do not consider that we are changing the existing coverage of any
modern award such as to attract the operation of s 163(1), but rather making clear the position
which was intended to apply when the Alpine Award was made. In any event, we consider
that the coverage of alpine resort management boards and their employees by the Alpine
Award would be appropriate.
[78] Doing this presents an opportunity to correct one other defect in the coverage
provisions of the Alpine Award which became apparent in the proceedings before us. As it
currently stands, clause 4.1 provides that an employer which operates an alpine resort, as
defined in clause 3, is covered by the Alpine Award in respect of any employee who falls
within the award’s classifications, whether they are actually employed at the alpine resort or
not. For example, if the operator of an alpine resort purchases a hotel which is located entirely
outside of that alpine resort, clause 4.1 would permit the application of the Alpine Award,
which contains a large range of classifications covering hospitality functions, to the hotel’s
employees merely because of the fact that the employer was the operator of an alpine resort.
That is clearly not what was intended by the Full Bench in making the Alpine Award, and
would not conform to the modern awards objective. We do not suggest that the evidence
before us demonstrates that this has actually occurred, but nonetheless it should not be
permitted to occur. The general industry award which would otherwise operate in that
situation would be the award providing the appropriate coverage.
[79] We do not consider that we should vary the Alpine Award in the form proposed by the
Mount Hotham Resort, because the paragraph (b) which it proposes be added to the definition
of “alpine resort” is itself dependent upon the use of the expression “alpine resort” – that is, it
defines the expression by using the same expression without defining it further.
[80] We consider that the existence of an alpine lift is the essential definitional feature of
an alpine resort; what needs to be made clear is that the operator of the resort does not itself
[2018] FWCFB 4984
31
necessarily have to operate directly the alpine lift in order to be covered by the Alpine Award.
Consequently, we have provisionally concluded that, in order to give effect to our
conclusions, the coverage provision in clause 4.1 and the definition of “alpine resort” in
clause 3 should be varied so that they provided as follows (with alterations emphasised):
4.1 This industry award covers employers throughout Australia who operate an alpine
resort and their employees employed at the alpine resort in the classifications within
Schedule B – Classification Definitions to the exclusion of any other modern award.
alpine resort means a resort which includes, among other things, an alpine lift.
[81] We have also provisionally concluded that the Alpine Award should be added to the
list of awards in clause 4.2 of the State Government Agencies Award 2010 which are excluded
from the coverage of the latter award, in order to ensure that there is no overlap in coverage
between the two awards.
[82] Interested parties will have a period of 21 days to file any submissions they wish to
make concerning the proposed variations to the Alpine Award and the State Government
Agencies Award set out above. Such submissions may include any proposals for alternative
forms of variation to give effect to our conclusions.
VICE PRESIDENT
Appearances:
K. Scott and L. Izzo, solicitors, on behalf of Australian Business Industrial, New South Wales
Business Chamber, the Thredbo Chamber of Commerce and Australian Hotels Association.
D. Bruno of counsel and M. Galbraith on behalf of the Shop, Distributive and Allied
Employees’ Association
M. Harmer, solicitor, D. Bates and C. Nowland on behalf of the Australian Ski Areas
Association
Z. Duncalfe and A. Crabb on behalf of the Australian Workers’ Union
S. Fitzgerald of counsel on behalf of the Mount Hotham Alpine Resort Management Board
Hearing details:
2017.
Canberra/Melbourne:
30 October – 2 November.
Printed by authority of the Commonwealth Government Printer
PR620218
OF THE FAIR WORK MISSION THE
