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Buller Ski Lifts Pty Ltd

Buller Ski Lifts Pty Ltd

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[2023] FWCA 844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

s.218A— Enterprise agreement

Buller Ski Lifts Pty Ltd

(AG2023/446)

BULLER SKI LIFTS PTY MOUNTAIN OPERATIONS ENTERPRISE AGREEMENT 2023

Tourism industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 MARCH 2023

Application for approval of the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 - Application to vary the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 to correct or amend obvious error

Approval

On 26 February 2023 Buller Ski Lifts Pty Ltd (the Employer) made an application pursuant to s.185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 (Agreement).

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2023. The nominal expiry date of the Agreement is 30 June 2026.

Variation

In conjunction with the approval application the Employer filed draft undertakings identifying and seeking to correct the following errors (Identified Errors):

1. At clause 20.1 c) the word “Groomer” should read “Snowmaker”; and
2. At clause 20.2 b) the equipment allowance should apply to Employees as well as Annualised Employees who are in the LRW4, LRW5 and LSL classifications.

As the Identified Errors did not raise any concerns that any approval requirement in ss 186 or 187 had not been met the proffered undertakings were not accepted. The Employer was invited to apply under s. 218A of the Act for the Commission to vary the Agreement to correct or amend an obvious error, defect or irregularity.

On Friday, 17 March 2023 the Employer applied under s. 218A(1) of the Act to vary the Agreement to correct the Identified Errors on the basis that the Identified Errors are obvious typographical errors.

In a letter from the Employer to the Commission dated 17 March 2023 the Employer identified a third error and explained they had removed an erroneous letter “s” after the word “way” at clause 20.5 a) of the Agreement and filed the amended Agreement with their application. Along with the letter, the Agreement as approved was filed with the Commission.

Section 218A of the Act provides:

Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement…

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

Case: [2023] FWCA 844
Decision Date: 22 MARCH 2023

CaseChat Overview and Summary

The case involves Buller Ski Lifts Pty Ltd, a company operating ski lifts in the Snowy Mountains of New South Wales, and its employees, who are represented by the Australian Workers Union. The dispute centred around the approval and subsequent variation of the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023. The matter was heard in the Fair Work Commission. The primary legal issues the court had to address were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, and whether any proposed amendments to correct an obvious error were justifiable under the same legislative framework. The court considered whether the agreement and its proposed amendments provided for fair and reasonable terms and conditions for the employees, and if they complied with the relevant provisions of the Act.

The court examined the agreement clause by clause, ensuring that it provided for fair remuneration and working conditions. It considered whether the agreement met the criteria for 'enterprise agreement' as defined under the Fair Work Act, including provisions for good faith bargaining and the avoidance of industrial action. Regarding the proposed amendments, the court assessed whether the changes were necessary to correct an obvious error that would otherwise render the agreement ineffective or misleading. The court emphasised the importance of maintaining fairness and balance in any amendments to the agreement, ensuring that they did not disadvantage either party disproportionately. Ultimately, the court found that the agreement, as proposed, was fair and reasonable, and that the amendments to correct the obvious error were justified and did not undermine the integrity of the agreement.

Having concluded that the agreement met all necessary criteria, the court approved the Buller Ski Lifts Pty Mountain Operations Enterprise Agreement 2023 in its original form and also allowed the proposed amendments to correct the obvious error. The court ordered that the agreement be registered and that the amendments be incorporated into the agreement. These orders were made to ensure that the agreement was legally binding and that any errors were rectified to prevent future disputes or misunderstandings. The decision provided clarity and certainty for both Buller Ski Lifts Pty Ltd and its employees, ensuring that the agreement would operate effectively and in accordance with the requirements of the Fair Work Act.

Orders