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).

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.

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.

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 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.

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:

4.1This 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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Alpine Resorts Award 2010 [2018] FWCFB 4984
Case: [2018] FWCFB 4984
Decision Date: 27 AUGUST 2018

CaseChat Overview and Summary

The case involved the Fair Work Commission, acting under the Fair Work Act 2009, reviewing the Alpine Resorts Award 2010. The dispute centred around the scope of the award, specifically whether it should cover all employees in the alpine resorts industry, regardless of their location or employment status. The commission was tasked with determining whether the award's classification of employees and the coverage of the award were appropriate and fair.

The primary legal issues revolved around the interpretation of the award and its application to the alpine resorts industry. The commission had to decide whether the award correctly identified and classified all relevant employees within the industry and whether the award's coverage was comprehensive enough to ensure fair and equitable treatment of all employees in the sector. Additionally, the commission considered whether the award adequately addressed the unique working conditions and employment practices within the alpine resorts industry.

The commission found that the Alpine Resorts Award 2010 was comprehensive and appropriately classified employees within the industry. It determined that the award's coverage was fair and equitable, taking into account the specific working conditions and employment practices within the alpine resorts sector. The commission concluded that the award was a valid and appropriate instrument for regulating employment conditions in the alpine resorts industry. Consequently, the review of the award was dismissed, and the award remained in force as it stood.

No further orders were made beyond the dismissal of the review and the continuation of the award in its existing form.

Orders