Australian Alpine Enterprises Pty Limited

[2013] FWCA 9310

[2013] FWCA 9310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Australian Alpine Enterprises Pty Limited
(AG2013/11460)

AUSTRALIAN ALPINE ENTERPRISES PTY LIMITED AND TRADE MAINTENANCE ENTERPRISE AGREEMENT 2013

Tourism industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 DECEMBER 2013

Australian Alpine Enterprises Pty Limited and Trade Maintenance Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Australian Alpine Enterprises Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Australian Alpine Enterprises Pty Limited and Trade Maintenance Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Manufacturing Workers’ Union (the ‘Union’) and two non-Union Employee Bargaining Representatives. The Agreement is to cover 16 employees who are engaged as trade maintenance employees at the applicant’s alpine resorts. I note that winter seasonal employees, such as administrative staff, lift operators, sales staff and snowsports instructors, are covered by another enterprise agreement. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 20 March 2013, and voting for the Agreement’s approval took place on 31 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 12 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms B Trembath, General Manager, identified the Alpine Resorts Award 2010 [MA000092] and the Alpine Resorts (The Australian Workers’ Union) Award 2001 [AP805713] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Trembathsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, the provision of personal equipment and more generous overtime entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 30 respectively, and a disputes resolution procedure at clause 18 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 25 November 2013, Mr D Thompson, Solicitor,appeared with Ms B Trembath for the applicant and Mr D Vroland for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Thompson outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He clarified that the Agreement did provide for one condition that could be construed as less beneficial in that cl 10 sets out higher ordinary hours during the Winter Season due to the operational requirements of the business. Ms Trembath said that rates of pay are to be increased by 3% in June of each year during the nominal term of the Agreement. Mr Vroland indicated that, while the Union was not entirely satisfied with the Agreement, the Union did not oppose the approval of the Agreement. He agreed that all of the legislative requirements for approval of an enterprise agreement had been met.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Australian Alpine Enterprises Pty Limited and Trade Maintenance Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 2 December 2013 and have a nominal expiry date of 21 June 2016.

DEPUTY PRESIDENT

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