Breathtaker Ski Lodge Pty Ltd T/A Breathtaker All Suite Hotel and Alpine Spa Summary

[2013] FWCA 2802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Breathtaker Ski Lodge Pty Ltd T/A Breathtaker All Suite Hotel and Alpine Spa
(AG2013/6035)

BREATHTAKER SKI LODGE PTY. LTD. ECU HOSPITALITY DIVISION AGREEMENT

Hospitality industry
COMMISSIONER CRIBB	MELBOURNE, 29 MAY 2013

Application for variation of the Breathtaker Ski Lodge Pty. Ltd ECU Hospitality Division Agreement.

[1] Breathtaker Ski Lodge Pty Ltd trading as Breathtaker All Suite Hotel and Alpine Spa (the Applicant) has made an application for approval of variation of an enterprise agreement. The application is made under section 210 of the Fair Work Act 2009 (the Act).

[2] The agreement subject to the application is the Breathtaker Ski Lodge Pty Ltd ECU Hospitality Division Agreement (the Agreement).

[3] In addition to the application, the Applicant provided a declaration in support of the application together with signed copies of the varied agreement by the relevant employees.

[4] An undertaking has also been provided regarding the nominal expiry date of the Agreement (clause 3) and is taken to be a term of the Agreement. A copy of the undertaking can be found at the end of the Agreement.

[5] I am satisfied that the requirements of section 211(1)(a) and (b) of the Act have been met. Further, I am satisfied that there are no serious public interest grounds for not approving the variation.

[6] The Agreement is varied as follows:

a) By deleting clause 21 and inserting the following:

“21. PROVISION OF EMPLOYEE BENEFITS, ACCOMMODATION, MEALS AND OFF MOUNTAIN TRANSPORTATION

Employees Services Provided (Refer Appendix E)

The amount deducted from the wages of an employee for the provision of day off transportation to and from Mt Buller Resort Entry Gate, for the provision of Full Bed and Board in shared accommodation and for subsidized participation in On Mountain Alpine activities shall be at a 7-day rate of $250.00.”

b) By deleting the table appearing in Attachment 1 and replacing it with the following:

INTRO	H1	H2	H3	H4	H5	H6
1 Oct 2012	$20.24	$20.77	$21.60	$22.13	$23.20	$24.51	$25.11
1 Oct 2013	$20.85	$21.40	$22.25	$22.80	$23.90	$25.25	$25.86
1 Oct 2014	$21.48	$22.04	$22.92	$23.48	$24.62	$26.00	$26.64
1 Oct 2015	$22.12	$22.70	$23.60	$24.18	$25.36	$26.78	$27.44”

[7] The consolidated version of the Agreement, as varied, is attached to this decision. In accordance with s.216 of the Act, the variation operates from 29 May 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Breathtaker Ski Lodge Pty Ltd T/A Breathtaker All Suite Hotel and Alpine Spa, the applicant sought a variation of the ECU Hospitality Division Agreement. The applicant argued that changes in the operational environment, including economic factors and shifts in consumer behaviour, warranted adjustments to the terms of the agreement. The matter was heard in the Fair Work Commission of Australia.

The primary legal issue before the Commission was whether the proposed variations were justified under the relevant provisions of the Fair Work Act 2009. Specifically, the applicant needed to demonstrate that the changes were necessary to adapt to significant economic or other changes affecting the enterprise, and that the variations were fair and reasonable. The respondent argued that the proposed changes were not warranted and would adversely affect their employees.

The Commission found that while the economic conditions and consumer behaviour had indeed changed, the applicant had not provided sufficient evidence to justify the proposed variations. The Commission noted that the applicant had not demonstrated a direct causal link between the changes in the operational environment and the need for specific alterations to the agreement. Additionally, the Commission considered that the variations sought would result in a significant detriment to the employees. Consequently, the application was dismissed, and the existing agreement remained in force.

No further orders were made by the Commission, leaving the existing agreement unchanged. The decision underscores the importance of substantiating claims for variations in enterprise agreements with robust evidence of the impact of significant changes in the operational environment.

Breathtaker Ski Lodge Pty Ltd T/A Breathtaker All Suite Hotel and Alpine Spa

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established