DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 Yearly Review of Modern Awards – Alpine Resorts Award 2010
(AM2016/30)

4 yearly review of modern awards – Alpine Resorts Award 2010 – substantive issues – coverage provisions.

[1] On 27 August 2018 1 (August 2018 decision) we issued a decision in connection with the 4 yearly review of the Alpine Resorts Award 2010 (Alpine Award) in which, among other things, we concluded that there was a defect in the coverage provisions of that award which required rectification. The conclusion we reached was as follows:

“[78] Doing this presents an opportunity to correct one other defect in the coverage provisions of the Alpine Award which became apparent in the proceedings before us. As it currently stands, clause 4.1 provides that an employer which operates an alpine resort, as defined in clause 3, is covered by the Alpine Award in respect of any employee who falls within the award’s classifications, whether they are actually employed at the alpine resort or not. For example, if the operator of an alpine resort purchases a hotel which is located entirely outside of that alpine resort, clause 4.1 would permit the application of the Alpine Award, which contains a large range of classifications covering hospitality functions, to the hotel’s employees merely because of the fact that the employer was the operator of an alpine resort. That is clearly not what was intended by the Full Bench in making the Alpine Award, and would not conform to the modern awards objective. We do not suggest that the evidence before us demonstrates that this has actually occurred, but nonetheless it should not be permitted to occur. The general industry award which would otherwise operate in that situation would be the award providing the appropriate coverage.”

[2] We expressed the provisional view in the August 2018 decision that the coverage provision in clause 4.1 of the Alpine Award  and the definition of “alpine resort” in clause 3 should be varied so that they provided as follows (with alterations emphasised):

4.1 This industry award covers employers throughout Australia who operate an alpine resort and their employees employed at the alpine resort in the classifications within Schedule B – Classification Definitions to the exclusion of any other modern award.

alpine resort means a resort which includes, among other things, an alpine lift.

[3] Subsequent to the August 2018 decision, we received submissions concerning this provisional view. Relevantly, the Australian Ski Areas Association (ASAA) made submissions opposing the proposed variation to clause 4.1, and advancing as an alternative that clause 4.1 be varied to provide:

“4.1 This industry award covers employers throughout Australia who operate an alpine resort and their employees employed at, or in connection with, the alpine resort in the classifications within Schedule B – Classification Definitions to the exclusion of any other.”

[4] In a decision issued on 14 May 2019 2 (May 2019 decision), we said in response to the ASAA’s submission:

“[5] We consider that there is merit in the proposition that persons who perform work that is directly connected with the operation of an alpine resort, but may not be physically located at the alpine resort, should not be excluded from the coverage of the Alpine Award. An example of this which was disclosed in the evidence was that alpine resorts in the Snowy Mountains in New South Wales employ persons to sell alpine lifting tickets in the feeder town of Jindabyne. Such employees have always been treated as covered by the Alpine Award and we are not inclined to alter that position. However, a mere connection with an alpine resort, as proposed in the alternative variation suggested by the ASAA, is in our view not sufficient. For example, if an alpine resort in the Snowy Mountains operated an accommodation facility in Jindabyne and employed persons there, it might be said that such employees perform work in connection with the alpine resort because the accommodation facility provides a service to guests, some of whom may be staying there for the purpose of accessing the alpine resort. However, we do not consider that the connection in such a case would be sufficiently direct, in that guests at the accommodation facility may intend to access a different alpine resort or perhaps may be staying there for an entirely different purpose. In that respect the position may be distinguished from one where, for example, the Thredbo Resort operates an accommodation facility in Thredbo itself, in which case it can be presumed that the guests will be users of the alpine resort and therefore that the necessary direct connection exists.”

[5] We then proposed that clause 4.1 would be varied to read:

4.1 This industry award covers employers throughout Australia who operate an alpine resort and their employees employed at, or in direct connection with the operation of, the alpine resort in the classifications within Schedule B – Classification Definitions to the exclusion of any other modern award.

[6] A draft determination was published incorporating the above variation, and we invited further submissions in response.

[7] The ASAA, in a submission dated 4 June 2019, opposed the draft variation of clause 4.1 on the grounds that:

•  the variation would focus on geographical limitation rather than off-slope activities, in that it incorporated a presumption against coverage in respect of an alpine resort’s off-slope activities which are geographically situated outside an alpine resort in the Snowy Mountains;

•  there is an undue focus on customer patronage over other factors in assessing “direct connection” such as the transfer of staff in response to the exigencies of weather;

•  even if customer patronage is determinative in assessing “direct connection”, the application of this term should cover activities that the Full Bench appear to consider would be excluded from coverage, such as accommodation establishments outside the resort which are used to house staff employed at the resort; and

•  there is ambiguity in interpreting “direct connection”.

[8] The ASAA requested that the Full Bench implement a process to allow them and other interested parties to file further submissions and evidence to refine the definition of clause 4.1. Directions were issued on 21 June 2019 to this effect and the matter was listed for hearing on 18 July 2019. The ASAA filed a further submission of 10 July 2019 which proposed two alternative variations to clause 4.1. A witness statement made by Gavin Girling, Human Resources Director of Perisher Blue Pty Ltd, accompanied the ASAA’s submissions. Mr Girling’s statement relayed the findings of a review conducted by the ASAA of feeder operations of its member alpine resorts. The purpose of this review, according to the ASAA, was to assess the extent to which the off-slope feeder operations of alpine resorts have a direct connection with the core activities (such as ski patrols, snow making, and lift maintenance) and adjacent activities (which are activities ancillary to the core operations, such as hotels and retail outlets).

[9] In response to the ASAA’s submissions, the Australian Workers’ Union (AWU) filed submissions on 16 July 2019 rejecting in full the ASAA’s submissions and proposed variations to clause 4.1 of the Award. The AWU supported the variation to clause 4.1 of the Alpine Award in the terms originally proposed in the August 2018 Decision. Similarly, the Shop Distributive and Allied Employees’ Association (SDAEA) submitted on 16 July 2019 that the variations proposed by the ASAA sought to expand the coverage of the Award beyond that which was contemplated by the August 2018 decision, and it supported the variation proposed in the May 2019 decision.

[10] Both the AWU and SDAEA expressed that they were content for their submissions to be considered on the papers and were therefore not in attendance at the hearing. Accordingly at the further hearing conducted by us on 18 July 2019, the ASAA was the only party in attendance.

[11] We are not persuaded to depart from the conclusions we expressed in the May 2019 decision. The further submissions made by the ASAA merely reiterate matters it has agitated before. Insofar as employees are primarily and usually employed within the physical confines of an alpine report, but may from time to time be transferred to perform work for the resort at a location outside the bounds of the resort because of the weather, the “direct connection” aspect of the proposed variation will not be relevant because the principal purpose of the employee’s employment is likely to be characterised as being to work in the alpine resort and hence covered by the Alpine Award on any view. The ASAA’s submissions in substance seek that we state, in a further decision, that any ski-related activity which alpine resorts currently engage in beyond the physical limits of the resort has the necessary “direct connection” with the operation of the resort. We decline to do so, not least because we do not accept the underlying proposition that is advanced for the reasons stated in the May 2019 decision.

[12] We are satisfied that the variation to the Alpine Award contained in the draft determination issued with the May 2019 decision is appropriate and consistent with the modern awards objective in s 134(1) of the Fair Work Act 2009. The variation will take effect on 1 December 2019. A determination will be issued with this decision reflecting this variation to the Alpine Award.

VICE PRESIDENT

Appearances:

M Harmer on behalf of the Australian Ski Areas Association.

Hearing details:

2019.

Sydney:

18 July.

Printed by authority of the Commonwealth Government Printer

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 1   [2018] FWCFB 4984

 2   [2019] FWCFB 3347