Buller Ski & Snowboard School Pty Ltd

[2013] FWCA 5164

[2013] FWCA 5164

FAIR WORK COMMISSION

DECISION

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

Buller Ski & Snowboard School Pty Ltd
(AG2013/7477)

BULLER SKI & SNOWBOARD SCHOOL ENTERPRISE AGREEMENT 2013

Tourism industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 JULY 2013

Application for approval of the Buller Ski & Snowboard School Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Buller Ski & Snowboard School 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 & Snowboard School Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). The Agreement is to cover 226 employees who are engaged in as Ski Instructors, Snowboard Instructors and Race Department employees. It does not cover Childcare Workers, Management or Supervisory Staff. 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 2 July 2012 and voting for the Agreement’s approval took place on 26 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process conducted partly on site and partly by email, all 142 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 July 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, General Manager, identified the Alpine Resorts Award 2010 [MA000092], the Alpine Resorts (The Australian Workers’ Union Award) 2001 [AP805713] and the Victorian Alpine Resorts Award 1999 [AP802224] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Blampiedsaid 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 incentive pay, the provision of rubber gloves, end of season and airfare allowances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 9 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 18 July 2013, Ms B Perry appeared for the applicant and Mr K Shepherd 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. 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. She explained that the business of the applicant was obviously seasonal and that, accordingly, not all of the employees voted in the ballot for the agreement. She also said that the rates of pay were directly in line with the Modern Award, although there were higher level classifications that were not covered by that instrument. Ms Perry also offered undertakings to clarify the intention that rates of pay are to be adjusted in accordance with the Commission’s Annual Minimum Wage Review Decision. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Mr Shepherd supported Ms Perry’s submissions.

[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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Buller Ski & Snowboard School Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 25 July 2013 and have a nominal expiry date of 25 July 2015.

DEPUTY PRESIDENT

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