Buller Ski Lifts Pty Ltd

[2013] FWCA 6722

[2013] FWCA 6722

FAIR WORK COMMISSION

DECISION

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

Buller Ski Lifts Pty Ltd
(AG2013/8682)

BULLER SKI LIFTS PTY LTD MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2013

Tourism industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 SEPTEMBER 2013

Application for approval of the Buller Ski Lifts Pty Ltd Maintenance Employees Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Buller Ski Lifts Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Buller Ski Lifts Pty Ltd Maintenance Employees Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Energy, Information, Postal Plumbing and Allied Services Union of Australia (CEPU) (collectively, the ‘Unions’). The Agreement is to cover 19 employees who perform metal trades, electrical trades and vehicle maintenance work at the applicant’s alpine resort in Mt Buller, Victoria. 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 15 July 2013, and voting for the Agreement’s approval took place on 6 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a show of hands, all 13 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr L Blampied identified the Alpine Resorts Award 2010 [MA000092] and The Metal, Engineering and Associated Industries (Accident Pay, Victoria) Award 1998 [AP789881] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Blampiedsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments in that the Agreement does not provide for penalty rates for full time and part time employees. However, the Agreement also provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, more generous redundancy entitlements, the provision of ski and snow equipment and payment for the cost of obtaining and renewing electrical licences for electrical tradespersons. Rates of pay are to be increased by 3.5% on 1 July 2014 and 1 July 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses Part 2, clause 33 and part 2, clause 6 respectively, and a disputes resolution procedure at clause 24 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 4 September 2013, Ms B Perry appeared for the applicant, Mr B Terzic for the AMWU and Mr D King for the CEPU. The Unions had filed Declarations in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Ms Perry 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. Ms Perry explained that the removal of penalty rates in favour of higher flat rates of pay was due to the unique nature of the alpine tourism industry. Mr Terzic and Mr King supported the submissions of Ms Perry.

[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 Buller Ski Lifts Pty Ltd Maintenance Employees Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 11 September 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

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