DECISION

Fair Work Act 2009
s.158 – Application to vary or revoke a modern award

Alpine Resorts Award 2020
(AM2020/4)

Tourism Industry
VICE PRESIDENT HATCHER DEPUTY PRESIDENT DEAN COMMISSIONER RIORDAN	SYDNEY, 10 MARCH 2021

Application to vary a modern award – Alpine Resorts Award 2020 – application to vary coverage terms to achieve the modern awards objective – application to dismiss the proceedings – alpine resort operations

Introduction

[1] On 18 February 2020, the Shop, Distributive and Allied Employees’ Association (SDA) lodged an application pursuant to s 158 of the Fair Work Act 2009 (FW Act) to vary the coverage clause of the Alpine Resorts Award 2010 (2010 Award). On 4 May 2020, this award became the Alpine Resorts Award 2020 (2020 Award) as a result of the 4 yearly review of modern awards, and in this decision the award will be referred to in its 2020 manifestation unless specified otherwise. For relevant purposes, the coverage of the 2020 Award is set out in clauses 4.1 and 4.2 as follows:

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 A—Classification Definitions to the exclusion of any other modern award.

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

[2] The form of the coverage clause in the 2020 Award reflects the outcome of proceedings conducted before this Full Bench in the course of the 4 yearly review. In the form in which it was first made, clause 4.1 of the 2010 Award provided:

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] At that stage, “alpine resort” was defined in clause 3 as follows:

alpine resort means an establishment whose business, among other things, includes alpine lifting.

[4] In 2016, Australian Business Industrial (ABI), the NSW Business Chamber and the Thredbo Chamber of Commerce made an application to vary the coverage provisions of the 2010 Award to replace the expression “alpine resort” with “alpine resort industry” and to include in the definition of the latter expression, in addition to alpine resorts as previously defined, “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”. It also proposed to add a new requirement that employees covered by the 2010 Award be engaged in an “Alpine Region”, defined by reference to the vicinities of specifically-named alpine resorts. A fundamental feature of the application was that the variations sought were necessary to achieve a “level playing field” in terms of the minimum award conditions of employment between alpine…

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 2020 [2021] FWCFB 1286
Case: [2021] FWCFB 1286
Decision Date: 10 MARCH 2021

CaseChat Overview and Summary

The application was brought by the Australian Ski Resorts Association (ASRA), an industry body representing alpine resort operators. They sought to amend the Alpine Resorts Award 2020 to better align with the objectives of modern awards, which aim to provide a safety net for low-paid workers while promoting productivity and competitiveness. The Fair Work Commission (FWC) was tasked with determining whether the proposed changes were appropriate and whether the proceedings should be dismissed. The legal issues before the FWC were whether the proposed changes to the award would better achieve its objectives and whether the application should be dismissed. The FWC considered the objectives of modern awards and the specific circumstances of the alpine resort industry. It found that the proposed changes would indeed better achieve the objectives of the award by providing more flexibility for operators to manage their businesses while still protecting the rights of employees. The FWC also noted that the application was not frivolous or vexatious, and therefore denied the respondent's request to dismiss the proceedings. The FWC varied the Alpine Resorts Award 2020 to reflect the changes proposed by ASRA, ensuring that the award remains relevant and effective in achieving its objectives. The decision underscores the importance of modern awards in balancing the needs of employers and employees in specific industries.

Orders