DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mount Hotham Alpine Resort Management Board
(AG2020/3935)

MOUNT HOTHAM ALPINE RESORT MANAGEMENT BOARD ENTERPRISE AGREEMENT 2020

Tourism industry
COMMISSIONER WILSON	MELBOURNE, 29 JANUARY 2021

Application for approval of the Mount Hotham Resort Management Board Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Mount Hotham Resort Management Board Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Mount Hotham Alpine Resort Management Board. The Agreement is a single enterprise agreement.

[2] 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.

[3] The Agreement lodged with the Fair Work Commission contained an error in Clause 2.4.3. On 22 January 2021, the Applicant filed an amended Agreement page rectifying the error pursuant to s.586 of the Act. I am satisfied that the correction to the Clause should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The Notice of Employee Representational Rights was not in its prescribed form as it included the date of issue. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] 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.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Australian Workers' Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 February 2021. The nominal expiry date of the Agreement is 1 September 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Mount Hotham Alpine Resort Management Board applied for the approval of the Mount Hotham Resort Management Board Enterprise Agreement 2020. The application was brought by the Board, and the respondents included the Australian Workers' Union and various employees of the Board. The dispute centred on the terms and conditions of employment as outlined in the proposed enterprise agreement.

The primary legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the 'better off overall test', ensuring that no employee would be worse off financially, and whether it adhered to the 'good faith' bargaining principles. Additionally, the Commission assessed whether the agreement contained all the mandated terms and conditions as stipulated by the Act.

In delivering its decision, the Commission found that the proposed agreement met all the statutory requirements. The Commission was satisfied that the agreement provided for terms and conditions that were at least as favourable as the applicable awards or the general industrial instruments. The Commission noted that the agreement was the product of genuine and meaningful negotiations between the parties, thus satisfying the 'good faith' requirement. Accordingly, the Commission approved the agreement, finding it to be fair and reasonable.

The final orders of the Commission were that the Mount Hotham Resort Management Board Enterprise Agreement 2020 be approved and registered under the Fair Work Act 2009, effective from the date of the decision. The agreement was to apply to the employees covered by the application, and the terms and conditions set out in the approved agreement would prevail over any conflicting terms in awards or other industrial instruments.

Mount Hotham Alpine Resort Management Board

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established