Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 YEARLY REVIEW OF MODERN AWARDS—ALPINE RESORTS AWARD 2010

4 yearly review of modern awards – Alpine Resorts Award 2010 – substantive issues – coverage provisions – State Government Agencies Administration Award 2010.

[1] On 27 August 2018 we issued a decision 1 in which we dealt with claims made to vary the coverage provisions of the Alpine Resorts Award 2010 (Alpine Award). In that decision we determined, in response to an application made by the Mount Hotham Alpine Resort Management Board, to vary the coverage provisions of the Alpine Award to make clear that while the essential definitional feature of an alpine resort was the existence of an alpine lift, an alpine resort did not necessarily have to operate directly the alpine lift in order to be covered by the Alpine Award.2 We also stated that we would take the opportunity to correct an apparent anomaly in the coverage provisions in the Alpine Award whereby it covered any employee of an employer operating an alpine resort who fell within the award’s classifications, even if the employee was not employed at the alpine resort.3 The 27 August 2018 decision then set out the variations which, on a provisional basis, we considered should be made to give effect to our decision as follows:

“[80] …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.”

[2] We provided an opportunity for interested parties to file written submissions in response to the proposed variations. Only two parties filed submissions. The Australian Workers’ Union (AWU), in a submission filed on 12 October 2018, supported the proposed variation to clause 4.1 of the Alpine Award, and did not oppose the proposed variations to clause 3 of the Alpine Award and clause 4.2 of the State Government Agencies Award 2010. The Australia Ski Areas Association (ASAA), in a submission filed on 19 September 2018, opposed the proposed variation to clause 4.1 of the Alpine Award and submitted:

•  the variation as drafted would arguably impose a geographical element to the award’s coverage and create ambiguity and uncertainty as to the exact boundaries of an alpine resort;

•  the ASAA’s members had integrated operations such as those that provided guest and customer services which are located “off-slope” in “feeder towns”;

•  some employees were transferred between “on-slope” and “off-slope” operations as needed during periods of adverse snow and weather conditions; and

•  such employees might be covered by another award, or become award-free, if the proposed variations was made.

[3] The ASAA proposed, as an alternative, that clause 4.1 be varied to provide as follows:

“4.1 This industry award covers employers throughout Australia who operate an alpine resort and their employees employed at, or in connection with, the alpine resort in the classifications within Schedule B – Classification Definitions to the exclusion of any other.”

[4] The ASAA also submitted that it should be given the opportunity to call further evidence in relation to the variation to clause 4.1 proposed in the 27 August 2018 decision.

[5] We consider that there is merit in the proposition that persons who perform work that is directly connected with the operation of an alpine resort, but may not be physically located at the alpine resort, should not be excluded from the coverage of the Alpine Award. An example of this which was disclosed in the evidence was that alpine resorts in the Snowy Mountains in New South Wales employ persons to sell alpine lifting tickets in the feeder town of Jindabyne. Such employees have always been treated as covered by the Alpine Award and we are not inclined to alter that position. However, a mere connection with an alpine resort, as proposed in the alternative variation suggested by the ASAA, is in our view not sufficient. For example, if an alpine resort in the Snowy Mountains operated an accommodation facility in Jindabyne and employed persons there, it might be said that such employees perform work in connection with the alpine resort because the accommodation facility provides a service to guests, some of whom may be staying there for the purpose of accessing the alpine resort. However, we do not consider that the connection in such a case would be sufficiently direct, in that guests at the accommodation facility may intend to access a different alpine resort or perhaps may be staying there for an entirely different purpose. In that respect the position may be distinguished from one where, for example, the Thredbo Resort operates an accommodation facility in Thredbo itself, in which case it can be presumed that the guests will be users of the alpine resort and therefore that the necessary direct connection exists.

[6] Accordingly, in order to give effect to the 27 August 2018 and this decision, draft determinations are attached for the following variations to be made (alterations emphasised):

(1) Clause 4.1 of the Alpine Award will be varied to read:

4.1 This industry award covers employers throughout Australia who operate an alpine resort and their employees employed at, or in direct connection with the operation of, the alpine resort in the classifications within Schedule B – Classification Definitions to the exclusion of any other modern award.

(2) The definition of “Alpine Resort” in clause 3 of the Alpine Award will be varied to read:

alpine resort means a resort which includes, among other things, an alpine lift.

(3) The name of the Alpine Award shall be added to the lists of awards in clause 4.2 of the State Government Agencies Award 2010 which are excluded from the coverage of that award.

[7] We will provide interested parties 21 days to file any written submissions they wish to make in response to the draft determinations. If there is no opposition, the draft determinations will be made. If there are submissions in opposition to the making of the draft determinations, we will then consider the next step to be taken (including whether we shall permit any further evidence to be adduced).

[8] The ASAA’s submission of 19 September 2018 also raised an issue about the calculation of overtime for casual employees under the Alpine Award. The position is as follows. Effective from 1 January 2018, the Alpine Award was varied to give effect to a package of changes agreed between the ASAA and the AWU. 4 These changes included variations to clauses 22 and 25 to confer upon casual employees, for the first time, an entitlement to overtime penalty rates in prescribed circumstances. It was intended by the parties that the overtime penalty rates for casual employees (as prescribed in clause 25.3) would be payable in substitution for the 25% casual loading, as was confirmed by the AWU in proceedings in respect of the separately-constituted Overtime for Casuals Full Bench on 25 February 2019,5 but the terms of the variation may not have clearly reflected that intention. In any event, the AWU has lodged an application to vary the relevant provisions of the Alpine Award to expressly provide that casual employees, when they work overtime hours, shall receive the penalty rates prescribed by clause 25.3 in addition to the 25% casual loading. That application is before the Overtime for Casuals Full Bench, and is listed for hearing before that bench in the week beginning 29 July 2019. Accordingly that issue will not be considered further by this Full Bench.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR708319>

Attachment A

Fair Work Act 2009 s.156 - 4 yearly review of modern awards

ALPINE RESORTS AWARD 2010
[MA000092]

4 yearly review of modern awards - Alpine Resorts Award 2010 - substantive issues concerning coverage.

A. Further to the Full Bench decisions issued by the Fair Work Commission on XX May 2019 [2019] FWCFB XXXX and on 27 August 2018 [2018] FWCFB 4984, the above award is varied as follows:

1. By deleting clause 4.1 and inserting the following:

4.1 This industry award covers employers throughout Australia who operate an alpine resort and their employees employed at, or in direct connection with the operation of, the alpine resort in the classifications within Schedule B—Classification Definitions to the exclusion of any other modern award.

2. By deleting the definition of ‘alpine resort’ in clause 3.1 and inserting the following:

alpine resort means a resort which includes, among other things, an alpine lift.

B. This determination comes into operation from XX May 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after the date of the operation.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment B

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards
(AM2016/30)

STATE GOVERNMENT AGENCIES ADMINISTRATION AWARD 2010
[MA000121]

4 yearly review of modern awards - State Government Agencies Administration Award 2010.

A. Further to the Full Bench decisions issued by the Fair Work Commission on XX May 2019 [2019] FWCFB XXXX and on 27 August 2018 [2018] FWCFB 4984, the above award is varied as follows:

1. By inserting the following award in clause 4.2 in alphabetical order:

Alpine Resorts Award 2010

B. This determination comes into operation from XX May 2019. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after the date of the operation.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2018] FWCFB 4984

 2   Ibid at [80]

 3   Ibid at [78]

 4   PR599077

 5   Transcript 25 February 2019, PNs 441-449