DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Alpine Enterprises Pty Ltd
(AG2018/5906)

MOUNT HOTHAM AND FALLS CREEK ENTERPRISE AGREEMENT 2018

Tourism industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 21 MAY 2019

Application for approval of the Mount Hotham and Falls Creek Enterprise Agreement 2018

[1] Australian Alpine Enterprises Pty Ltd has made an application for approval of an enterprise agreement known as the Mount Hotham and Falls Creek Enterprise Agreement 2018 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement was approved on 21 May 2019 and, in accordance with s 54, will operate from 28 May 2019. The nominal expiry date of the Agreement is 28 May 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Australian Alpine Enterprises Pty Ltd, an employer, sought approval of an enterprise agreement from the Fair Work Commission (FWC). The enterprise agreement, known as the Mount Hotham and Falls Creek Enterprise Agreement 2018, was proposed to regulate the employment conditions of the company's employees. The applicant sought the FWC's approval as the enterprise agreement contained provisions that deviated from the safety net of minimum entitlements set out in the relevant industrial instrument. The FWC was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The key legal issue before the FWC was whether the provisions in the enterprise agreement that deviated from the safety net of minimum entitlements were genuinely bargained and met the requirements of section 230 of the Fair Work Act. The FWC had to consider whether the provisions were fairly and genuinely negotiated between the parties, and whether the agreement would result in a safety net outcome that was not worse off for employees than the safety net provided by the relevant industrial instrument. Additionally, the FWC had to consider whether the provisions would have a detrimental effect on the health, safety or welfare of employees.

In determining that the enterprise agreement met the criteria for approval, the FWC found that the provisions had been genuinely negotiated between the parties and that they would not result in a safety net outcome that was worse off for employees. The FWC also found that the provisions would not have a detrimental effect on the health, safety or welfare of employees. The FWC was satisfied that the agreement provided for a fair and efficient workplace and that it was in the best interests of the employees. Consequently, the FWC approved the enterprise agreement.

The FWC's decision resulted in the approval of the Mount Hotham and Falls Creek Enterprise Agreement 2018. The agreement now regulates the employment conditions of the employees of Australian Alpine Enterprises Pty Ltd. The approval of the enterprise agreement allows the company to implement the agreed-upon terms and conditions, which deviate from the safety net of minimum entitlements, provided they do not result in employees being worse off than if the relevant industrial instrument applied. The decision highlights the importance of genuine bargaining and the FWC's role in ensuring that enterprise agreements are fair and in the best interests of the employees.

Australian Alpine Enterprises Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established