Falls Creek Resort Management - [2010] FWA 2847

[2010] FWA 2847

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of Enterprise Agreement

Falls Creek Resort Management
(AG2010/8399)

State and Territory government administration
COMMISSIONER ROE	MELBOURNE, 19 MAY 2010

Application for approval of the Falls Creek Alpine Resort Management Board Outdoor Workers Enterprise Agreement 2009-2012 – application refused.

[1] An application has been made for approval of an Enterprise Agreement known as the Falls Creek Alpine Resort Management Board Outdoor Workers Enterprise Agreement 2009- 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). Section 185 is in Part 2–4 of the Act which provides for the making of Enterprise Agreements between an employer and their employees who are employed at the time the agreement is made and who will be covered by the agreement. The application has been made by Falls Creek Alpine Resort Management Board (the Applicant). The Applicant is a non-budget funded Victorian Government Business Enterprise. The Agreement is a single-Enterprise Agreement. The Agreement only covers the outdoor workers as the indoor workers are covered by a separate Agreement.

[2] The application for approval was received by Fair Work Australia on 12 April 2010. On the same day correspondence was received from Craig Winter, Industrial Officer of the Australian Workers Union (AWU) advising that the AWU believed that the Agreement did not pass the Better Off Overall Test and sought that the matter be considered at a formal hearing. The Applicant attested to the fact that the AWU was a bargaining representative for the Agreement in the F16 application and the F17 declaration in support. 1 On 20 April 2010 my Associate wrote to the Falls Creek Alpine Resort Management Board advising them that I had made an initial examination of the Agreement and raising five issues of concern to which I asked them to respond by 28 April 2010. The five issues raised in the correspondence were as follows (headings were not in the original correspondence):

“1. The Notice of representational rights. The procedural requirements appear to be in order with one exception. That exception is that the F17 declaration completed by the employer states that the employees received the last notice of representational rights on 1 April 2009. This seems somewhat surprising given that the Fair Work Act was assented to on April 7 2009 and came into force from 1 July 2009. It would be appreciated if you could provide a copy of the notice provided if it is available or other information concerning the provision of the notice of representational rights.

2. The application of National Employment Standards. There are some matters concerning the relationship between the Agreement and the National Employment Standards which are of some concern. There are some matters which are covered by the National Employment Standards which are not included in the Agreement. Even though these matters do have application to employees under the Agreement, employees might think that they are not covered by those matters as the…

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.

Continue reading Falls Creek Resort Management

Details

AGLC: Falls Creek Resort Management [2010] FWA 2847
Case: [2010] FWA 2847
Decision Date: 19 MAY 2010

CaseChat Overview and Summary

Falls Creek Resort Management is a case in which the Fair Work Commission was asked to approve the Falls Creek Alpine Resort Management Board Outdoor Workers Enterprise Agreement 2009-2012. The applicant was the Falls Creek Alpine Resort Management Board and the respondent was the Australian Workers' Union. The matter was heard in the Fair Work Commission.

The legal issues that the Commission had to determine involved whether the agreement met the requirements set out in section 230 of the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement provided for terms and conditions of employment that were no less favourable than the applicable award or registered agreement, whether it complied with the good faith bargaining requirements, and whether it met the requirements for a low paid workforce.

The Commission found that the agreement did not meet the requirements of section 230 of the Act. The Commission was concerned that the agreement did not provide for terms and conditions that were no less favourable than the applicable award or registered agreement. The Commission also found that the agreement did not meet the good faith bargaining requirements as the bargaining process did not involve a genuine attempt to reach an agreement. The Commission was also concerned that the agreement did not adequately address the needs of the low paid workforce.

As a result of these findings, the Commission refused to approve the agreement. The Commission held that the agreement did not meet the necessary criteria and was not in the best interests of the employees. The Commission's decision was based on its findings that the agreement did not provide for terms and conditions that were no less favourable than the applicable award or registered agreement, did not comply with the good faith bargaining requirements, and did not adequately address the needs of the low paid workforce.

The Commission's final orders were that the application for approval of the Falls Creek Alpine Resort Management Board Outdoor Workers Enterprise Agreement 2009-2012 be refused. The Commission did not make any other orders.

Orders