[2017] FWCFB 4177


Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Alpine Resorts Award 2010



[1] In the 4 yearly review of the Alpine Resorts Award 2010 (Award), applications have been made by a number of employers and employer groups to vary the coverage of the Award. The primary application has jointly been made by Australian Business Industrial, the NSW Business Chamber and the Thredbo Chamber of Commerce. This application is opposed by an employer association, the Australian Ski Areas Association, and also by the Australian Workers’ Union and the Shop, Distributive and Allied Employees’ Association (SDA). Interested parties have filed their evidence and submissions in relation to the coverage applications, and the matter is listed for hearing before this Full Bench for the whole of the week beginning on 30 October 2017.

[2] In the course of programming the matter, a proposal was advanced that the Full Bench should conduct an inspection of certain alpine resort facilities in order to assist in the determination of the coverage applications. This proposal was the subject of consideration at directions hearings before Dean DP on 13 April, 28 April and 22 June 2017, and has also been the subject of extensive correspondence passing between the parties and the Commission. The SDA participated in the directions hearings and was copied into the correspondence. This process culminated in a final program of inspections being developed. The inspections will be at the Thredbo and Perisher resorts in NSW, and will occur on 23 August 2017. The SDA did not raise any objection to the conduct of the inspections during this programming process.

[3] On 25 July 2017 the Commission sent correspondence to the interested parties, including the SDA, which among other things inquired whether it was considered necessary for there to be a recording of what occurred during the inspections. On 1 August 2017 the SDA advised the Commission that its preference was that there be a transcript of the inspections. No other interested party expressed this view.

[4] On 9 August 2017 the SDA sent correspondence to the Commission which, omitting formal parts, read as follows:

“The FWC proposed a one day site visit to Perisher and Thredbo on 23rd August 2017. The itinerary of this site visit has already been the subject of discussion among the parties.

However, it remains unclear to the SDA as to the purpose and utility of such a visit. A run-sheet has been proposed for the day which references “viewing” and “inspecting” various establishments. No information has been provided to date that clearly outlines the purpose and reason for a site inspection to this alpine area.

The SDA is unclear how this site visit could assist the Full Bench in determining the main issue in this 4 yearly review, which concerns the matter of coverage. Although the site visit will be transcribed, the SDA has concerns about procedural fairness if the site visit were to be used as a means of gathering evidence from people who may happen to interact with the parties and the Full Bench during the visit. The SDA is also concerned about both the time and resources required to undertake such a visit where the industrial purpose of the visit is unclear.

In light of the above, the SDA would like to place on the record its concern that a site visit on a question relating to coverage appears unnecessary. The detailed submissions of the parties clearly articulate the arguments in favour of, and in opposition to, the necessity of a change in coverage.”

[5] In light of these communications from the SDA, we consider that we should clarify what we consider to be the nature and purpose of the inspections. First, we do not consider that anything that occurs during the inspection constitutes evidence in the proper sense. The function of the inspections is to assist the Commission in understanding the evidence which will be adduced by the parties at the hearing commencing on 30 October 2017. Second, the inspections are not to be used as an opportunity, through interactions with persons encountered on the inspections, to bring in evidence “by the backdoor”. It may be necessary during the inspections for identified persons to explain what is being shown to the Full Bench, and members of the Full Bench may ask questions as part of that process to assist in their understanding of this. However, this will not constitute evidence. Third, representatives of the parties may wish, either at an appropriate stage of the inspections or at the hearing, to place on record a summary of what has occurred during the inspections. This may be done with the permission of the Full Bench and, if permission is granted, any such summary will be recorded and a transcript produced. The inspections will not otherwise be recorded. Fourth, parties may, at the hearing, make submissions concerning the relevance, if any, of the inspections to the evidence adduced at the hearing and the issues in the proceedings. Any such submissions will of course be considered by the Full Bench.

[6] On that basis, the inspections will proceed in accordance with the program for the inspections which has been arranged on 23 August 2017.

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