Fair Work Logo Merrill Logo






Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Alpine Resorts Award 2010






Continued from 1/11/2017



VICE PRESIDENT HATCHER:  Ms Fitzgerald, you appear for the - - -


MS FITZGERALD:  Yes, I thought I might let you know who I was.


VICE PRESIDENT HATCHER:  - - - the Mount Hotham Alpine Resort Management Board.


MS FITZGERALD:  Yes, thank you.  I understand that you're not ready for our part of the proceeding just yet.




MS FITZGERALD:  But I thought to save reorganisation, I'd pop up here now.


VICE PRESIDENT HATCHER:  But don't go too far because it won't be long.


MS FITZGERALD:  No, I will stay here just to prevent too much rummaging later on.  I'm content with that, thank you.


VICE PRESIDENT HATCHER:  Yes, all right.  All right, thank you.  Mr Bruno, you're next.


MR BRUNO:  Yes, thank you, your Honour.  I propose to address four topics before the Commission today.  Because the other parties have to some extent covered a number of the areas that I wanted to discuss, I won't seek to repeat what they have said in detail.  The first issue I'd like to take the Commission to is a brief issue about the nature of the Commission's jurisdiction, particularly in light of your Honour the Vice President's exchange with Mr Izzo yesterday and, particularly, in the context of whether it's necessary for a finding to be made as to whether or not this particular modern award currently meets the modern awards objective or not.


After that, I'd seek to make some very brief submissions about the historical context of the award.  Mr Harmer, in particular, has taken the Commission through that history, so I won't repeat that.  There are some brief things that I do want to say.  After that - - -


VICE PRESIDENT HATCHER:  No, go on, Mr Bruno, I just lost my glasses.


MR BRUNO:  After that, I would seek to make some general observations about the evidence and some of the main themes or topics before the Commission in this particular review.  And, lastly, I'd seek to address the modern awards objective, specifically with reference to section 134 in the criteria (a) to (g) in subsection (1).  If I could start with the first topic which is the nature of the Commission's jurisdiction, if I could provide your Honours or the Commission with copies of the recent Federal Court penalty rates Full Court decision.  I have got copies for, I think, two of my friends only.  I apologise to Ms Fitzgerald.


Firstly, if I could ask the Commission to turn to page 38.  Sorry, it's paragraph 38.  My version is slightly different so I can't assist with page numbers, I'm sorry.  But the paragraph that I just wanted to refer to there is just the nature of what this review is and I started in the opening by referring to this and Mr Izzo touched upon this yesterday.  So in that paragraph, the Full Court of the Federal Court confirmed that a review for the purposes of section 156(2) of the Fair Work Act takes on its ordinary and natural meaning of survey, inspect, re-examine or lock back upon.  That's what I wanted to say about that issue.


In terms of the issue about the necessity for this Bench to deal with the issue of whether the award currently meets the modern awards objective, if I could ask the Commission to turn to paragraph 45 and there the Full Court refers to a decision of Construction, Forestry, Mining and Energy Union v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 and, in particular, paragraphs 28 and 29 of the joint judgment of the Chief Justice, North and O'Callaghan JJ, and it's those two paragraphs there which I wanted to take the Commission to and this is what paragraph 28 says:


The terms of section 156(2)(a) require the Commission to review all modern awards every four years.


Move on:


The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under section 157(1)(a) of the legislation.  Rather, it is a review of the modern award as a whole.


If we then move to paragraph 29 of that quote, their Honours saying that:


Viewing the statutory task in this way reveals that it is not necessary for the Commission to make a conclusion that the award, or a term of the award as it currently stands, does not meet the modern award objective.  Rather, it is necessary for the Commission to review the award and, by reference to the matters in section 134(1) and any other consideration consistent with the purpose of the objective to come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.


The Full Court of the Federal Court has said that, but before this Commission quite clearly is an application to do something and that application is to make a variation to coverage.  So, in my submission, it would be natural for the Commission to consider what the award currently does and who is covered - that's clear the Commission couldn't help but do that - and consider the variation to determine whether it's necessary to expand coverage in the way contemplated to enable the award to meet the modern awards objective and that - - -


VICE PRESIDENT HATCHER:  If the addition of a term can only be done because it's necessary to achieve the objective for the whole award, I can't see how it wouldn't follow that without the term it doesn't meet the objective.


MR BRUNO:  Yes, yes, I think that probably follows and when their Honours refer to the first line at paragraph 29 where they say it's not necessary, I don't think their Honours are saying that the Commission couldn't determine whether it meets the modern awards objective or not, it's just not necessary to express it, in my submission.  That was that issue.  In terms of turning to the topic of history, Mr Harmer, as I have said, has taken the Commission through largely a lot of the historical material in relation to the award.  What I would seek to submit to the Commission about history is that it is a confined award.  It has always been a confined award since modernisation and when we look back to the state awards and, in particular, 1989 when this all started in New South Wales with the Ski Industry Award, it was so limited to those ski lift entities at that particular stage.


I submit that in terms of that historical context, when the award was being contemplated by the award modernisation Full Bench back in 2009, the award modernisation bench had to have been aware of that particular history, submissions were directed towards the history.  The exposure drafts which were released also contains the very confined coverage clause which remains in the award today.  And my friend, Mr Harmer, has taken the Commission through to the various exchanges, particularly on 30 June 2009 between the representative for the SDA, Mr Ryan, and Giudice, about the existence of other businesses in a co-located manner with the lifting entities and the various other awards that apply.


If there was any confusion as a result of the subsequent exchange between his Honour and Mr Harmer, that confusion falls away, in my submission, when the SDA makes that subsequent submission that Mr Harmer also took your Honours to yesterday and that's the 30 July or the July 2009 submission from the SDA again confirming that there were other businesses in the area that would be covered by the other industry awards.


The only other thing that I wanted to say about history was to refer to a particular part of the reasons of the Full Bench in relation to the 4 September decision when the award was created and published.  And it's a paragraph that your Honour the Vice President touched upon yesterday when I think Mr Harmer was asked a question about what a particular award was and it was the award which applied in Victoria.  In terms of that particular history, I just wanted to read out, when I locate it, what the Full Bench said about a particular topic and it's paragraph 265 of that particular decision.


I will read it out.  I haven't got the reference in the affidavit right before me, but what this paragraph is as follows:


The AWU has agreed on a provision that would exclude  casual employees from public holiday penalty rates, among other things.  We note that the Alpine Resorts (The Australian Workers' Union) Award 2001, does not provide for such an exclusion.  We have decided not to include the agreed exclusion.  Casuals will be entitled to public holiday penalties under the award.  If we have misunderstood the position or the intention of the penalties an application can be made to vary the award.


What I would seek to do in relation to that paragraph is to suggest to the Commission in this four yearly review that the Full Bench was alert to the issue of penalties in this particular modern award and the lack thereof of penalties.  It was alive to that issue, but what the Full Bench was not prepared to do was to make any further limitation to penalties that wasn't reflected in the awards collectively as a whole before it.  And I think that's an important issue for this Bench to consider in terms of history that there was, to an extent, some consideration of the issue of penalties because, quite clearly, before the Full Bench, they were asked to make a modern award which omitted a number of penalties which the general industry awards had.


If I can now move onto the next topic which is I wanted to make some submissions about evidence in relation to particular issues in this review.  The first issue that I'd like to raise or make the submission about is that it was for the applicant in this particular review to put forward a cogent reason as to why coverage needed to be expanded in the manner that is currently sought.  And given the significance of the change to this award, and it is significant, I say, it's removing some people from the general industry awards and the minimum safety nets of each of those particular awards to a situation where the minimum safety net is very different.


In order to do that, the applicants had a heavy task.  Their task was to come along to this Commission with probative evidence to essentially provide the Commission with the information and the evidence to enable the Commission to undertake that evaluated task which is required under the modern awards objective.  And my submission is that the applicants overall have not succeeded in that task and I would be urging the Commission to ultimately reject the application.


If I could address the sufficiency of the evidence overall in nature of the change which is sought and the change which is sought relates to coverage, but not just coverage by reference to an industry, but coverage by reference to geographical locations.  I must say in terms of the evidence that has been put before the Commission, we now have 14 rather than 15 locations which are described in the coverage clause.  We've had a number of witnesses from two of those locations primarily, so we had Thredbo witnesses, we had Falls Creek witnesses.  We have had, of course, Mr Girling, who was able to speak on behalf of or in relation to, sorry, Perisher.


But we have got other locations which are included in this coverage clause and, for example, we have got Ben Lomond in Tasmania and the evidence in relation to the local conditions in relation to Ben Lomond, in my submission, has been almost completely lacking.  I think it's been referred to, perhaps, in the evidence of Mr Girling, if I remember, but peripherally, I would say.  What I say is where the applicant has sought to extend coverage by geographical location in this way, they again have a heavy, heavy task in persuading the Commission.


The applicant ought to have come to this Commission with evidence which would put the Commission in the position of being able to make some pretty solid or firm findings or conclusions about each of those geographical locations.  They haven't done that, but what's happened instead is some locations which are feeder towns, for example, are in, some aren't.  The coverage clause has varied again as of yesterday to refer to 2.5 kilometres.  This all raises significant issues in terms of the Commission's task of being able to perform the required assessment in relation to the modern awards objective in relation to each of those locations.  I just say that the Commission would find it very difficult, if not impossible, to make findings about each of those locations that if the award is varied, as suggested, that the modern awards objective would be met.  So I say that about the evidence overall.


In terms of another issues which has been a big feature in this case, and it's been particularly a big feature from the SDA's perspective is this topic of employee preferences.  Now, what I say about that is that I know the criticism is put by the applicants that the SDA could have come to this Commission with evidence, for example, of employees, so these employees could tell the Commission what they like to do on weekends and how it is for them if they have to give up a Saturday, et cetera.


What I say about that is that consistent with the preliminary issues jurisdictional issues decision, it was for the applicants to come to the Commission with the probative evidence in the first place.


My submission is that the evidence doesn't meet that particular standard.  I accept on the evidence that in this particular - within the alpine areas that often a number of employees go there because they're interested in skiing.  They're attracted to that region in the first place.  I don't accept that that apples universally, but a number of them do, a lot of them do.


But in my submission, that's not what this case is about solely when we are looking at employee preferences.  We're looking at the issue of what dis-utility is there for an employee to work on a night time shift or on a Saturday or Sunday.  And the case that's currently put is that there is absolutely zero or no dis-utility and that's measured by a reference to one criteria and on criteria alone, in my submission.  That's referenced by the fact of whether or not the applicant likes skiing, whether it's good for them to ski on a weekend or not, or whether it's better on the weekend.


In my submission, that type of evidence, particularly when the commission hasn't heard from the employees themselves, is quite reductive and what I mean by that is it reduces the value that someone attributes to their weekend, to their own time on the weekend, to whether or not they're able to ski or not.  Now, in my cross-examination, I asked all of the witnesses pretty standard questions and at times I felt like I was repeating myself, but I still persisted.  And the question was:  "Do you accept that your employees have other interests?"  And, of course, the witnesses said:  "Yes, we accept that."


The other question I asked was:  "Do you accept that other motivations for staff telling you that they want to work on the weekend might be because you currently pay them penalty rates?"  Now, in the majority, the witnesses said:  "Yes, we accept that." Now, when the Commission comes to analyse that evidence from employers, firstly, I say the evidence should be given little weight, it's hearsay, sometimes it's speculation.  But, in any event, if the Commission was to stand in the shoes of an employee who is on a mountain, who is employed casually ordinarily, it's not unusual or unreasonable for an employee to convey to their employer, "Yeah, I like working on the weekends", if they're the hours that the employer can offer because the employee gets penalty rates.


In terms of the issue of the dis-utility, I would encourage the Commission not to view the issue of dis-utility or social disability by reference to this one criteria or not about skiing.  A lot of these people that work in the alpine industry over the ski season come from elsewhere.  Mr Girling was able to say in his evidence that some live locally in the regions and they will go up to the mountain to work.  Some are transient and might move around from place to place.  Others might live in Victoria or New South Wales, in the cities, for example, and move temporarily to these locations to work.


In my submission, it cannot seriously be suggested that for these people that give up their lives from elsewhere that when they come to the mountains they're in a different world where you only look at dis-utility by reference to whether they like to ski or not.  In my submission, the issue of dis-utility is much broader than that.  One could speculate or consider all of the things that an employee who leaves their family, for example, might give up when they go to the mountains and they are geographically located in an area where there's only a few things to do.  It's either skiing or going out to the restaurants or socialising or perhaps going into the local areas.  So I would encourage the Commission to view that issue not in the manner that the applicants contemplate.  That's what I wanted to say about that topic and that evidence about employee preferences.


There has been a lot of evidence in the witness statements and also orally about fringe benefits.  What I say about those fringe benefits is they're telling in terms of they are offered or they appear to be offered because it's expensive on the mountains and I say that all of these employees that the SDA is concerned about are low-paid workers and I will take the Commission to why I say that later.  But these fringe benefits are ultimately discretionary.  There's not a lot of evidence before the Commission about how many employers provide fringe benefits.  So, for example, the subsidised accommodation.  We certainly did have some witnesses who gave evidence about the provision of fringe benefits, but not all of them.  So what I would encourage the Commission to do when viewing what is a fair and reasonable safety net for these people is not to have regard to those fringe benefits which aren't reflected in any of the general awards or the Alpine Resorts Award when determining what constitutes a fair and relevant minimum safety net.


One issue that I thought I would address is one of the awards, and it's the Hospitality Industry (General) Award contains somewhat of a protection for an employee in relation to the issue of subsidised accommodation and the Commission might remember I asked some questions of Ms Clark who was the last witness.  Now, she said that she provided subsidised accommodation to her employees at the rate of $250 and I put to her if she was aware or not whether that was higher than what was the permitted amount in the industry award.


She explained that what she had done was created this arrangement where it was outside of the award context where she entered into a separate contract with that particular - well, her employees, and they paid her $250 and they then lived in her apartment.  There is obviously room for that to happen, but by and large, that Hospitality Industry (General) Award does create a protection when we consider the needs of the low paid that it creates a maximum that is properly claimable.


VICE PRESIDENT HATCHER:  I haven't looked at that provision.  What does it actually say?  Is it about deductions?


MR BRUNO:  It's about wage deductions.  It specifically refers to wage deductions, so I think the witness is right when she says she doesn't do that, she enters into a separate agreement.  But I don't think that was the spirit of what was intended with the modern award.  If I can move on, I have addressed those particular general evidentiary - - -


VICE PRESIDENT HATCHER:  Sorry, your union's interest obviously directly relates to that aspect of the application which concerns ski sale and hire shops.


MR BRUNO:  Yes, yes, that's right, and also, we think, fast food could be covered because of the references to food services.


VICE PRESIDENT HATCHER:  Yes, yes, all right.  Is there any reference to subsidised accommodation in respect of the retail part of it, the retail witnesses or witness?


MR BRUNO:  That's a good question.  I specifically can't recall that issue.


SPEAKER:  One of the retail providers, the one from Mount Buller, provided some subsidised accommodation.


MR BRUNO:  My friend is telling me it's the witness from Mount Buller whose name escapes me at the moment.


VICE PRESIDENT HATCHER:  Mr Archibald, was it?


SPEAKER:  Mr Aivatagolou.  Mr Aivatagolou.


MR BRUNO:  That's right, Mr Aivatagolou.  So he was the ski - - -


SPEAKER:  Yes, he is rental.






MR BRUNO:  Yes.  That equivalent protection, as far as I can see, is not included in the General Retail Industry Award, for example.  In terms of the modern awards objective, so that's really the last topic that I wanted to address the Commission on and it's one of the most or the most important topic to address the Commission on today.  If the Commission still has the penalty rates decision before the Commission, what I wanted to do was just - and I'll try and do this as quickly as possible, the Commission is very familiar with this objective, but the Federal Court Full Court has, in essence, provided the most recent authority in relation to what the modern awards objective requires the Commission to do.  And so I thought I could briefly point the Commission to some of the paragraphs there.


As the Commission has always done, paragraph 48 says that the role of the Commission is to perform a value judgment based on assessment of the considerations in section 134(1)(a) to (h).  Then at paragraph 48, it continues to say that:


The considerations in (a) to (h) inform the evaluation of what might constitute a fair and relevant minimum safety net of terms and conditions, but they do not necessarily exhaust the matters which the Commission might properly consider to be relevant to that standard in particular circumstances of the review.


What they say then in paragraph 49 is that:


The factors in (a) to (h) are broadly conceived and will involve competing value judgments about broad questions of social and economic policy.


That's nothing new to the Commission.


The Commission is to perform the required evaluative function by taking into account the (a) to (h) matters and assessing the qualities of the safety net by reference to the criteria of fairness and relevance and the Commission is entitled to conceptualise those criteria by reference to the potential universe of facts, relevance being determined by implication from the subject matter, scope and purpose of the Fair Work Act.


So what the court is saying here is (a) to (h) factors are simply not a code for the Commission.  They are, however, the mandatory relevant considerations which must be taken into account, but the Commission is not limited to what is fair and relevant minimum safety net by these factors.  Other facts might be in the minds of the Commission members which go to what is a fair and relevant minimum safety net, provided those facts and circumstances are consistent with the scope and subject matter of the Fair Work Act.  If I can ask the Commission to turn to paragraph 55, paragraph 55, in my submission, the Full Court of the Federal Court tacitly accept, and I don't think this is controversial, that the historical context of an award goes to or is relevant to the issue of what is a fair and relevant minimum safety net.


In terms of submissions about what is a fair and relevant minimum safety net in this case in the context of the application which is being put, what I say about history is that the history is clear, it's been confined for a number of years, and we have had this operation where there are some employers and employees who are covered by the Alpine Resorts Award who might work in retail, for example, or fast food.  And there are other employees who work for different employers who work under the general industry awards and there is a difference quite clearly there with what each gets paid, particularly if they work weekends or night time work.


What I say about that is that's the history.  It's been like that for years.  Now, I'm not suggesting that the Commission could never change that history, but what I say about history is that it's important when analysing what is a fair and relevant minimum safety net for the new cohort of people that the applicants are attempting to bring into this.  And the reality is for these employees who would be covered by extended coverage if the Commission granted that application would overnight, if the draft determination was made, have their penalty rate severed.  Not the public holidays.  We know that they will continue to apply.  But that's what will happen.


This award is not just about skiing.  The majority of the time that this award applies in any given year is about eight years.  Most of the employers who gave evidence have some staff or a staple of staff that they apply either on a full-time basis, sometimes it's just casual.  Some of these employers are actually a key part of the operations themselves and they're serving customers, et cetera.  But what would happen if the Commission did extend this over the geographical locations?  There's 14 of them.  Overnight, there would be just a reduction, in my submission, of pay for these particular employees.


What we have done, the SDA has done, is prepared some examples.  They're only examples.  We have prepared three rosters just to give the Commission an idea of potential sums of money that might be lost and if I could hand that up now.  So when we look at this, the first, roster 1, just deals with a staff member who works nine until five or a full time week either as a permanent or a casual under the Alpine, the general retail, the fast food and we have got hair and beauty but I can see that hair and beauty is not part of the application that's been brought.  It's limited by the wording in relation to retail.


There's no material change you can see with that.  That might be obvious.  So there is no material disadvantage save for the fact that the alpine resort in each instance has lower minimum base wage than the general retail industry and the fast food and I think that figure was about 50 cents an hour and we looked at that yesterday.


When we come to roster 2, now roster 2 is predicated on the basis of an employee working six hours between Monday and Friday and then six hours each on Saturday and Sunday, and that's where we start to see the difference which might be obvious because the penalty rates apply under the other awards, they don't apply under the Alpine Resorts Award and that applies - - -


VICE PRESIDENT HATCHER:  That's based on penalty rates as they currently stand.




VICE PRESIDENT HATCHER:  Not after the phase in after reduction.


MR BRUNO:  Yes, yes, so I should have added that.  Thank you for that question.  These figures incorporate up to date as at 30 October, so that should include what happened in penalty rates and the transitional reductions.


VICE PRESIDENT HATCHER:  The first five per cent.


MR BRUNO:  The first lot, yes.




MR BRUNO:  So there's that example.  The last example we have given, and I accept there are other examples.  There's possible different configurations you can come to, is someone working 20 hours during the week and doing an eight-hour shift on, say, a Sunday.  You might recall in the evidence that some of the employers employ staff particularly in accommodation to do the housekeeping on a Sunday.  So what we have got there is Sunday of eight hours and there we can see the reduction in take-home pay on both the permanents and casuals there.


What I say about the general industry awards is that they provide the fair and relevant minimum safety net for each of these particular workers.  These workers form part of those particular industries.  It's insufficient, in my submission, for the coverage applicants to seek to align themselves with the businesses or the business operations of the Alpine Lifting Company but reference to matters of weather, seasonal impact, the fact that they need to fluctuate or their staffing levels fluctuate.


As the Commission has indicated in some of the questions with Mr Izzo, in particular, there are many different places which are affected by these things, to different degrees, I accept that, in the tourism industry.  But we don't have in Australia particular carve-outs for working in, say, a location close to the Great Barrier Reef, the people who are engaged in particular jobs there.  I think there might be a marine one, I'm not sure. But even if we take the Great Ocean Road in Victoria at the moment which can become busy - I think I can say that from the Bar table - over the summer period and places like Lorne or Apollo Bay flood in with tourists and we have surfers that go there.  It's no different, in my submission.


I accept that these businesses do earn the majority of their income in a fairly confined time period.  But my submission is:  well, so what?  All of these businesses, by and large who have given evidence this week, save for one or two, I think, are operating profitably overall.  What they do to deal with demand is they up their casual levels.  They use the casual provisions.  They've got the ability to use casuals under each of the general awards and that seems to be working for them.


There wasn't a suggestion, apart from potentially a suggestion with one of the witnesses, that the utilisation of casual staff to deal with the ebbs and flows of demand was creating some sort of impediment for these businesses.  One of the witnesses seemed to be confusing terminology.  He was saying that his seasonal employees, the reason why he wanted access to the award was that the award has better provisions in relation to seasonal employees and particularly with termination.  But on cross-examination, it was revealed that what he does already is employs casuals.  So those casuals can be terminated at the drop of a hat if the ski season was to end straight away.  So what I say about that is that those flexibility provisions that are in the Alpine Resorts Award, including as to multi hire and dual hire, generally don't apply or aren't necessary for these other businesses based on the evidence that's been brought before the Commission.


Can I then just turn to, and I have almost finished, but I will go through each of the criteria in the legislation.  So the relative living standards and the needs of the low paid.  What I say is if we turn back to that table, each of those workers is low paid and I say if the Commission has a look at paragraphs 166 to 168 of the penalty rates decision - I think my friend handed that to the Commission yesterday - that provides a mechanism that one might use when determining who is a low paid employee.  And two surveys are referred to there and what I'd say about the figures that one looks at when we come to roster 1 permanent, they are all below the figures in those two surveys of how you determine what a low paid worker is.


There has been no evidence before this Commission which could give the Commission any confidence that their needs would be met if they were switched over to the Alpine Resorts Award.  It's impossible for the Commission to conclude that.  What the Commission could conclude is that they would receive a reduction in pay.  The majority of them work on weekends and their penalty rates would go.  That would have a significant harsh effect on casual staff who don't have job security, ultimately, and have travelled from various places to work in a region away from their ordinary life.  What I would say is, about that factor, I would urge the Commission in the context of this review to give that factor sufficient weight.  It's a really important one.


The need to encourage collective bargaining.  Now, it's been said by the applicant in the written submissions that by varying the award in this way it will encourage collective bargaining.  There has been not much evidence on collective bargaining before the Commission.  I think the evidence of Mr Girling in the afternoon on Tuesday which covered the other three issues which the Full Bench is considering, touched on there has been some collective bargaining in some areas with some of the resorts.  But when we look at the coverage being extended to these other businesses, it would be very difficult for the applicants to persuade the Commission that by reducing the safety net for these workers to what is contemplated, that that would incentivise employers to engage in collective bargaining.  So much is removed in terms of the safety net from the employees' perspective that it couldn't do that.


What I would say is I would urge the Commission to have regard to what the Full Bench said in the penalty rates decision and it's at paragraph 178 and the Full Bench has said that a reduction in penalty rates may incentivise employees to engage in collective bargaining, it would be in the employees' interests to try and get something better, a reduction in penalty rates may create a disincentive for employees to bargain.  I say that where the reduction is such as contemplated in this application, it would create a disincentive.  I say that factor doesn't support the application.


The need to promote social inclusion through increased workforce participation.  Now, the evidence in relation to this issue as well, I would submit, is quite lacking.  There is not much evidence before the Commission that could persuade the Commission that if coverage were so extended that the employers would seek to give staff more hours or employ more staff.  What the evidence overall suggests is that this is about profitability and issues of perceived fairness by the employers, who I can understand would come to this Commission and give evidence to say they think it's not fair that this dual side by side arrangement works where someone selling skis over here whose employer is a ski lift entity is paid less, whereas their employees have to be paid more.  It's understandable that the employers in the circumstances before this Commission would feel somewhat aggrieved by that situation, but the evidence doesn't support an increase in workforce participation.


The next criterion is the need to promote flexible modern work practices and the efficient and productive performance of work.  In my submission, and I have touched on this already, there isn't any evidence to support or sufficient evidence to support the notion that the flexibility on the employer side, the flexibility contained in the Alpine Resorts Award is necessary for these other businesses.  These businesses use casuals.  It seems to be working.  There hasn't been evidence, in my submission, that the utilisation of casual staff is somehow impeding these businesses in terms of casuals just leaving.  What the evidence has demonstrated is that the majority of business owners who gave evidence have a line of employees that are coming or willing and able currently to come and work for them.  Not that the utilisation of casuals was problematic for their businesses and their ongoing nature.


In terms of the need to provide additional remuneration for - and here I am referring to employees working irregular, unsocial, unpredictable hours or employees working on weekends - I would point to what I have said already that the general industry awards already provide for penalty rates and this is what this cohort of employee has been receiving.  It cannot seriously be suggested that because they have gone to an area where they like skiing but they don't like doing it on the weekends that there is no dis-utility.


My submission about the issue of the need to provide additional remuneration is that the Commission should not view the issue of dis-unity through the lens that the applicant asked the Commission to review it through.  The Commission should have regard to the fact that the penalty rates decision of this Commission has confirmed that there is dis-utility for people working in general retail and hair and beauty and fast food in terms of working weekends and, in some instances, at night.  I would encourage the Commission not to see this particular situation differently because of a hobby or a sport or something that an applicant likes.


In terms of principle of equal remuneration for work of equal or comparable value, this is something that the Full Bench in the penalty rates case pointed out.  But one needs to turn to section 302(2) of the legislation to see that that term "equal remuneration for work for equal or comparable value" is defined and it means equal remuneration for men and women workers for work equal or comparable value.  And as the Full Bench says at paragraph 207:


The appropriate approach to the construction of section 134(1)(e) is to read the words of the definition into the substantive provision such that in giving effect to the modern awards objective, the Commission must take into account the principle of equal remuneration for men and women workers for work of equal or comparable value.


I would say that this principle isn't invoked with the coverage clause, at least expressly, and so it's a neutral factor for the Commission when considering this application.


The next criterion is the likely impact of any exercise of modern award powers on business including on productivity, employment costs and the regulatory burden.  The Commission can make a finding on the evidence that there will be a reduction in employment costs for the various other employers that would be covered by the award.  That's not controversial.  But in terms of the impact on business including as to productivity and the regulatory burden, the evidence about productivity is very insufficient.  My submission about the evidence is that the ultimate finding is that the majority of the witnesses came to the Commission because they were concerned with issues of fairness and competitive advantage.  But, ultimately, it was about profit for them in wanting to have the same wage expense on a per person basis as the ski lift entity.


There was, I accept, some evidence which could go to the issue of productivity, for example, and that was from Mr Aivatagolou who rented and sold ski equipment.  He gave some good evidence that he might employ some more people so he can cut down wait time for customers.  There is that evidence, but overall the evidence on productivity is very, very weak that the Commission could make a finding that there would be a real impact on productivity if this happened.


The regulatory burden.  I'm not sure that there was much evidence at all in relation to how this would assist with the regulatory burden, apart from perhaps in one or two cases an employer like Mr Pennington might stop using two awards.  I think at the moment he would be using the Hospitality Award and then perhaps also another award maybe, and retail.  I haven't checked that thoroughly.  So there are examples of businesses that do a bit more than just the one thing that might need to access two different awards.  But they don't have the same requirements of, say, Mr Harmer's clients who sometimes at least use the multi-hiring provisions.


But the regulatory burden, one of the witnesses, and I am not suggesting that the Commission would be persuaded by this, but his evidence was that it would be easier from a bookkeeping perspective to enable him to use one rate rather than three.  I think he is referring to the different penalty rates and the base rate because it's a bit hard to do that.  Now, my submission is that's not a reason to change penalty rates in this particular way.  My submission is that factor is overall not supportive of the variation.


The need to ensure a simple, easy to understand stable and sustainable modern award system that avoids unnecessary overlap of modern awards.  What I say about that one is that's a difficult criteria for the Commission to apply because what I say is there currently is overlap between awards.  We have got the alpine awards which covers a range of employees through various classifications.  Some of them are retail, fast food and hair and beauty.  We've also got the general industry awards.  There's overlap already.  What I would encourage the Commission to do is to not amplify the overlap that exists by putting everyone on the mountain under the same award.


The issue that I would also encourage the Commission to consider with this particular aspect of the application is geographical boundary - defining, sorry, coverage by geographical locations in this case is very, very risky, because we have seen, and Mr Harmer has pointed this out already, we have already had a change from, I think it was 10 kilometres at first by one of the applicants.  They have then joined position to two kilometres is the radius.  Then we have gone to 2.5.  Who is to say next week it might not change because another business is found?  I suppose the submissions of Mr Harmer generally about the idea behind doing it by geography is quite risky.  I also say that in practice how does that apply?  Does someone need to use Google Maps to make sure they have got the measure right?  Do they need to have it surveyed?  It's really difficult to, in my submission, use geography in this particular way.


I do want to come back briefly to the issue of geography to ask a question from your Honour the Vice President about 154(1)(b) of the Act.  But before I get there, there is one criteria that I need to cover and I'll be brief.  The Commission needs to consider the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.  My submission again is that largely the evidence is about profit of individual operators and that the factors in that particular criteria will not be enhanced.


The last thing I want to say about the modern awards objective and issues of fairness generally because there are other factors at the Commission can have regard to.  What the applicants have sought to do is raise issues of fairness as between employee groups, so the employers that Mr Izzo's members represent and the employer of Mr Harmer's client.  The modern awards objective is much bigger and broader than considering issues of fairness between employers.  Employees are in the room and are a prime focus under that.  It is about the provision of fair and relevant minimum safety net and, in my submission, the Alpine Resorts Award does not do that and would not do that in relation to the extended coverage application.


Unless I can assist the Commission with anything further about those issues under the modern awards objective, I might turn to the section 154(1)(b) issue.  There is a case, I'm not sure if the Commission has located that, but I can hand it up.


VICE PRESIDENT HATCHER:  Is this one about district allowances, is that it?


MR BRUNO:  Yes, that's the one.  So your Honour is probably familiar with that.


VICE PRESIDENT HATCHER:  I remember the case, I didn't remember what the answer was.


MR BRUNO:  The answer, in my submission, is one that's not necessarily helpful for my client.  I concede that.  The case was about an allowance provision and what the court was doing - it's the Full Court is doing in that case is constructing section 154(1)(b) of the Act with the allowance provision that appears in section 139(1)(g)(iii) of the Act.  And the majority or the judgment of Buchanan which North agrees with, ultimately, considers a couple of arguments about the proper construction of section 154(1)(b).  Is it limited to - does a provision in an award offend section 154(1)(b) if it describes locations within Australia but not as the award or the condition applying to Australian generally?


So here we have got an award that picks out or, sorry, the draft determination picks out three states in terms of the 14 locations.  We have got Tasmania, Victoria and New South Wales.  What the determination doesn't do is refer to state boundaries at all, but it certainly refers to locations within three states only.  So the argument could be made, I suppose, without reference to this case that by referring to locations within three states, are you offending against 154(1)(b) which is in the judgment.  I am just - - -


VICE PRESIDENT HATCHER:  Paragraph 40.  The answer is "No", isn't it?


MR BRUNO:  Yes, the answer is "No" so I can probably circumvent it.  So the case considered something limited but provided, in my submission, an unhelpful answer for my clients in relation to the issue overall.


VICE PRESIDENT HATCHER:  I thank you for that assistance.  Mr Harmer, do you want - - -


MR HARMER:  With the discretion of the Commission and in response to the same question, I just wanted to add some very minor and brief submissions on this.


VICE PRESIDENT HATCHER:  Is there any different answer?


MR HARMER:  In our respectful submission, potentially, yes, your Honour, and I appreciate the tribunal raising the question.  The context is this that what was being considered there was an isolation allowance and there was an issue based on the fact that section 159(1)(g) of those which list the subject matter that could be covered in a modern award specifically referred to allowances which could be made by reference to location.  So there was in the case of an isolation allowance, there was a direct conflict between section 154 and another provision in the Act and in that context, the Federal Court pragmatically came to the view that one had to resolve that conflict and one would resolve it in favour of the notion that, yes, you could grant an isolation allowance and that specific clause did not clash with the spirit and intent of section 154.


We don't cavil with that rationale at all, but what we say is that the Federal Court decision has to be read in that limited context.  If one steps back and looks at section 154 in a purposive approach, if the intention is transitioning to a unitary system that there no longer be an attempt to maintain awards that are split up by states, we would take that as a simplistic purpose and then apply to what's happening in this specific case.  We initially took the view that there was no offence and certainly there isn't with the current award because it's just ski lift operators wherever they are.


But the difficulty does arise - and as I say, we're indebted to the tribunal for bringing us back to the issue - the difficulty does arise in the moving feast that is this determination as it has emerged during the course of the week because what we find in the current draft determination is a lot of uncertainty as to how it applies in any state.


VICE PRESIDENT HATCHER:  Just drifting away from the point, paragraph 38 of the court's decision says:  "The objective is to prohibit differences between entitlements in states or territories as such."  The draft determination doesn't do that, does it?


MR HARMER:  What I was going to move to, your Honour, is this, and I'll just go to the simple point, there are resorts in three states.  If the specifications dealing with resorts in one state were different to those in another, there would potentially be conflict with the purpose, the spirt and intention of 154.  And what we see is that in terms of the intended scope, there is a differential approach to one resort, for example, in Victoria, being the Mount Hotham Alpine Resort, as opposed to resorts in New South Wales.  There is uncertainty as to what is intended to be covered with Tasmania or why any feeder town to Ben Lomond is not even being considered, et cetera.  And I don't put it any higher than that the tribunal could not at present be certain that there was not differential impact in each state with no apparent rationale and that goes back to the whole uncertainty around what is the rationale.


VICE PRESIDENT HATCHER:  I think you made that submission yesterday, Mr Harmer.


MR HARMER:  May it please the tribunal.


VICE PRESIDENT HATCHER:  All right.  Mr Duncalfe in Sydney, because of Mr Crabb's absence there was an application to the AWU to make its closing submissions in writing.  Is that still the approach the AWU wants to take?


MR DUNCALFE:  Yes, your Honour, it is, thank you.


VICE PRESIDENT HATCHER:  All right.  How long should that take?  Is seven days enough?


MR DUNCALFE:  We're in the hands of the Full Bench on that, so if you'd like to - - -


VICE PRESIDENT HATCHER:  Will seven days be enough?


MR DUNCALFE:  Seven days will be enough, yes, your Honour.


VICE PRESIDENT HATCHER:  All right, thank you.  Anything briefly in reply, Mr Izzo?


MR IZZO:  Yes, your Honour, and I'll be brief.  Just on the 154 issue, we don't agree with the position that has been advanced by the ASAA in relation to the Federal Court decision.  If I can just draw your attention to a couple of paragraphs.  Paragraph 35 talks about the approach that was suggested by the appellants in that case, the Australian Chamber of Commerce and Industry.  The Australian Chamber of Commerce and Industry said that whilst you could have location allowances by reference to heat, cold, isolation, et cetera, that you might, for instance, have a tropical allowance that doesn't work in Tasmania or a working in snow allowance, for instance, that might not operate in the Northern Territory.  That type of provision wouldn't offence 154, but they advance the idea that if you specifically name a location, that does offend 154.


The Federal Court did not accept that approach.  At 36, they said:  "That approach suggests that the drafters of the Act set out to elevate form over substance.  I find the suggested approach to be so artificial.  I do not accept that."  So the position the appellants were arguing is that by naming Broken Hill as a location, it could only ever operate in New South Wales, that was problematic.  But you could name, for instance, a tropical allowance that would never work in Tasmania.  And the Federal Court said that's an artificial approach.  They then went on at paragraph 39 to say:  "More particularly, the proposition that all modern award terms must operate uniformly throughout Australia is, in my view, impossible in that point to reconcile with 139."


They then go on at 40 to say:  "Section 154, in my view, does not prohibit disability allowances for particular locations or a particular location."  And in 41, they say:  "In my view, it does not apply to prevent or prohibit the Broken Hill term."  And the Broken Hill term just said if you're in Broken Hill, you get this allowance.  We say the terms of the draft determination are precisely in the same language.  And if I could just hand up for your reference the Full Bench decision that was subject of the appeal. The reason I hand this up is because the Full Bench drew a distinction between different types of drafting.


If I can take you to paragraph 11 of that decision which is on page 3, that's where the Full Bench started to deal with district allowances.  At the very bottom, you will see they start to extract the clause and it says:  "Northern Territory."  And then if you turn overleaf, it says:  "An employee in the Northern Territory is entitled to a district allowance", and on it goes.  And then you will see at 1.2, Western Australian:  "An employee in WA is entitled to payment of district allowance."  Those district allowance provisions were also subject to consideration and if we turn to paragraph 55 of the judgment, you will see that the Full Bench says that it disallows in some of the earlier paragraphs the WA and NT provisions to continue, it said we're going to make them sunset.  The main reason for this is the current provisions cannot be retained in awards consistent with section 154.


So they formed a view that the Northern Territory and WA provisions were inconsistent with 154 because they were specifically determined across state and territory lines.  But if you then go to paragraph 57, they deal with the Broken Hill allowance, and at paragraph 57, they extract the Broken Hill allowance and you can see the provision which says that an employee in Broken Hill gets an additional loading.  And then at paragraph 62, they say:  "We note that the Broken Hill allowance is in different terms to the transitional provisions relating to WA and NT, the allowances specified in four awards."  And they say at the last line of 62:  "It's not a term or condition of employment determined by reference to state or territory boundaries."


So the Full Bench has already looked at this and basically they accord with the view of the Federal Court which is that it has to be expressed across state and territory lines to be prohibited, and our determination is not so expressed.


So that's what I would say about that.  If for any reason your Honours disagree with that view, it would be possible to redraft the determination to talk about ski resorts generally, but then we would actually be adopting the approach the Federal Court did not wish to go down which is you talk about something artificially, well, you need to be in a ski resort, they might only be in certain states and territories.  I think the Federal Court - - -


VICE PRESIDENT HATCHER:  Well, you can do that.  I mean, that's the way a whole lot of awards work.


MR IZZO:  You certainly can do that.


VICE PRESIDENT HATCHER:  I mean, for example, that's the way the Black Coal Industry Award works.  There is only black coal mining I think in three states but - - -


MR IZZO:  And that would again not be inconsistent with 154.  So that's what I would say in relation to that mater.  I am going to be brief about the matters I reply to and I won't address everything because I'm aware we have had the issues very well ventilated over the course of the last four days.  The first thing I would say is that some issue has been raised with the revised drafting of the further amended draft determination.  In particular, the biggest concern raised by the ski resorts is that it's possible that Skitube drivers not based at the alpine resort would fall out of the coverage of the award.


That was not the intent.  The reason that we changed it slightly is because we thought the Bench raised quite a legitimate query which is that under the current drafting, an alpine resort could operate a business anywhere in the country and, as a result, would be covered by the award and that seemed to be quite an absurd outcome.  So in addition to confining the coverage of the award by geography for our businesses, we did the same for the alpine lifting companies.  As you know, that was a late amendment.  We didn't appreciate that it would affect the Skitube drivers and I don't think that's an intended or appropriate outcome.  But as Mr Harmer pointed out, that's a matter that can again be readily rectified by way of revising the drafting.


We did know that it might exclude the operations in Jindabyne for the ticket selling officers in Jindabyne for Perisher, Thredbo and possibly others.  But we didn't necessarily have an issue with that because the reality is if someone is principally engaged in Jindabyne to perform those services, we say they're not in an alpine region, and all of those issues that we have talked about for the last four days, fluctuating demand, the seasonality, in terms of the weather, at least, the imminent sensation of business, would not apply so much in Jindabyne.


But, in any event, that is really a matter about the drafting.  I think the question is, is the Commission persuaded to change the coverage of the award.  If you are, then I think we need to have a discussion about how we draft it and that can easily be done.


DEPUTY PRESIDENT DEAN:  Mr Izzo, could you just remind me again why Corin Forest is not in the list?


MR IZZO:  In the determination?




MR IZZO:  We say that Corin Forest, in our view, is not really a ski resort as such.  It has one lift, we're aware.  It's just out of Canberra.  It seems to us to be an entirely different type of business to the main businesses that we're talking about here.  We have distinguished it on that basis.  I think all it has is a magic carpet, from memory, but I know it's one lift.  It's kind of a half-hour drive from Canberra.  It's not in the kind of remote areas in that sense that these other resorts are.  We just don't see it as the same type of business.


DEPUTY PRESIDENT DEAN:  All right, thank you.


VICE PRESIDENT HATCHER:  Would it be currently covered by the Alpine Award?


MR IZZO:  Yes, it would be currently covered.


VICE PRESIDENT HATCHER:  So you would take it out of the Alpine Award?


MR IZZO:  I think if it's not in the draft determination, which I don't think it is, that would be right.  I don't think at the time that it was drafted - I don't recall if we had specific awareness that it actually had a lift at that time.  If it is the case that there is a business engaged in alpine lifting that's currently covered, it may be that that is the impact and then the Commission really needs to again turn its mind to, well, what's the most appropriate safety net for that type of business.


VICE PRESIDENT HATCHER:  We don't know anything about it apart from what you just told us.


MR IZZO:  So there is two ways of doing that.  One is to maintain the existing coverage.  No, apologies, your Honours, I think that's not right.  It would fall within the coverage of the alpine draft determination that we have prepared two days - that we presented at the beginning of this hearing.  It's just the further revised draft determination that causes an issue because the initial draft determination said you were covered if you were engaged in alpine lifting and also you were covered if you were an alpine tourism business in this particular region.


Corin Forest would maintain its coverage under that drafting because it engages in alpine lifting.  The issue of Corin Forest falling out has arisen with the further draft that was presented yesterday.  So that's why we hadn't turned out minds to it because until the further draft was prepared and, as I said, it was a direct response to a question from the Bench.  That wasn't an outcome we were anticipating.  So I think it is an issue that would need to be addressed.  It would need to be done in the drafting.


It wasn't our intention to exclude them.  It's arisen because of that further draft determination and I think we can see that we need to.  We either go back to the initial drafting that was presented on Monday and we just change the radius to two and a half kilometres, or we explore how else we can constrain the alpine businesses from magically opening up a business in a non-alpine region.  But it was not the intention to exclude them as an alpine lifting company.


VICE PRESIDENT HATCHER:  What does "alpine lifting" actually mean, anyway?


MR IZZO:  I don't think it's defined in the award.  I presume it means the operation of a mechanical lift of some description to carry a skier or boarder up the mountain.  I mean, one of the difficulties with the current description is that our businesses could, in fact, some of them, install a makeshift rope tow and move within the coverage of the award.


VICE PRESIDENT HATCHER:  I only say that because I remember being of extreme old age that Jamberoo Recreation Park started off as a grass skiing facility and it's always had a chairlift.  Does that make it an alpine lifting operator, Mr Harmer?  I think it's mainly moved into water slides now.


MR HARMER:  I'm sorry, your Honour, I missed the location.


VICE PRESIDENT HATCHER:  Jamberoo Recreation Park started off as a grass skiing facility and it's always had a chair lift and it's on a mountain.  As I said, it's mainly water slides now.  I don't know if the grass skiing is still there, but - - -


MR HARMER:  Yes, I don't think that quite gets into the alpine category, your Honour.




MR HARMER:  My understanding would be, and I may be wrong on this, "alpine" has the connotation of the snow region.


VICE PRESIDENT HATCHER:  Snow, is it?  Okay.


MR HARMER:  Jamberoo, as I understand it, you know, is close to the coast, close to Sydney.


VICE PRESIDENT HATCHER:  The Australian Alps don't cease to be alps just because it's not snowing.


MR HARMER:  Yes, but the fact that it's not snowing doesn't change the fact it's an alpine region.  And one would have to go to context again and taking a practical approach.


VICE PRESIDENT HATCHER:  Yes, all right.  Anything else, Mr Izzo?


MR IZZO:  Yes, your Honour.  In relation to a number of arguments being put about history, we just say we need to be very careful when dealing with history.  What happened 30 years ago has limited relevance to the Commission's assessment today of the modern awards objective and how it aligns with the relevant employees and what award is most appropriate as the safety net.  I would also say that there has been a lot of focus on this deal.  I like to call it a 1980s type deal with the AWU where the AWU was granted exclusive coverage over a region.  They managed to get that with the assistance of the ASAA.  In return, the ASAA has received certain terms and conditions it likes and there is a compact between them and a deal that was done.  There is a deal that remains to this day.  They have put forward a consent position today or this week to the Commission.


The fact that a deal has been done between the union and the employer again does not mean that that's the appropriate safety net and the fact that the AWU seems to have got a benefit out of it in terms of exclusive coverage, again tends to suggest that we should be cautious just by putting weight on what happened 30 years ago in the subsequent history.  We really need to focus on the terms and conditions.


Very briefly, and I thought we had addressed this, but in terms of cogent reasons, that term keeps coming up again.  I will just give you the reference to the preliminary issues decision.  It's paragraph 60.3.  The Full Bench in that decision said that:  "Full Bench decisions of the Commission should generally be followed in the absence of cogent reasons for not doing so."  The point there is if a Full Bench has determined an issue, you need cogent reasons to depart from it.  We say this argument was not put in 2010, therefore, the cogent reasons hurdle, if you like, does not apply to these proceedings, but in any event, we meet it, and that's the point that we make in relation to that.


A point was made in relation to the draft determination and why there is no local post office mentioned for Mount Hotham.  That's because the local post office is not within the resort as it is with the others, so we were unable to use the local post office, but we specified the resort and we think it's self-evident where that is.  And whilst I'm on that question of geography, I think some criticism has been made of the shift from two kilometre to 2.15.  Again, we were looking primarily, as Mr Scott said, down the road, in the sense of is there any other business within sight?  No.  What we didn't appreciate is that due to the vastness of Perisher, there was someone on mountain quite a way away.  But the reality is, if you look at the cluster of businesses, once you go beyond a two and a kilometre radius, there really is nothing until you get much further down the mountain.


VICE PRESIDENT HATCHER:  Does that assume that the position will forever be static?  That is there are these businesses and there will never be any more at any other location?


MR IZZO:  I think more businesses could grow, but what we say is if you take - most of them are going to be at the base of the village.  If you go two and a half kilometres, imagine Thredbo, for instance, which we went to, if you get two and a half kilometres from that car park, there's nothing there.




MR IZZO:  Now.  Well, and there wouldn't be anything there, we say, for a considerable period.  Most of the businesses or all of the businesses are clustered, so unless you had an urban expansion of such that it reached that extremity, that would take a number of years, decades, we would say, and if it did, then the safety net at that point might need to be reviewed.  But we say that's a long, long way away.  And, as I understand it, the Commission is still reviewing awards every four years under the current legislative framework so there would be an opportunity to do that again, as of 1 January 2018, I understand.


The next point I wanted to make, there has been some criticism that there is no employer association representing Victoria.  We say a few things about that.  There are employer associations here representing businesses across the country, that includes the AHA.  The New South Business Chamber, evidence was actually given that its predominant membership and the predominant membership of ABI relates to New South Wales businesses, but there are indeed some businesses outside that have membership.  But, in any event, the reality is you have four employer organisations who have a legitimate interest in this award and standing before the Commission and they have put forward an evidentiary case, and that's what we should be focussing on.


This question about the Perisher Chamber of Commerce, I do just wish to address that.  The evidence was that Perisher is a member, that Perisher Resort is a member of that chamber of commerce.  That means that chamber of commerce has an inherent conflict within it.  There are alpine tourism businesses wanting to be covered.  There is the resorts saying they shouldn't be covered.  It is not surprising in that context where there is a conflict within the chamber because of the membership of an alpine resort.


VICE PRESIDENT HATCHER:  Do we know if there is a conflict?


MR IZZO:  Well, I don't think we know if there is a conflict.  What we know is, though, that the membership do have differences that are conflicting in the sense that the ski resorts we know oppose it and in terms of the alpine tourism businesses, well, I think it's self-evident from the evidence that it's generally in their interest to be covered by the Alpine Award and so one would assume that their interests aren't really aligned with that of the resort, as we have seen throughout the course of this hearing.


VICE PRESIDENT HATCHER:  Mr Girling says they were peacefully persuaded to their view.


MR IZZO:  That was Mr Girling's view.  The evidence, and I know it's hearsay, but that was given by myself is that there was fear of retribution.  Now, it's second-hand.  It doesn't have a lot of weight.  I think the reality is we don't know why in relation to those businesses, but I don't think we can say they support it and certainly there is no opposition.  There was a lot of focus in relation to the initial application that was made in 2014 by DPSI and the motivation for that, and a lot of questions about non-compliance in the past.  We say that has no relevance.  The reality is there were businesses that thought that they were covered by this award.  We can understand why they had that misunderstanding.  Some, in fact, were led to believe that by the Ombudsman it seems.  But upon becoming aware that they weren't covered by the award, they made an application to vary the Alpine Award to change the coverage.  Employer organisations identified that as an issue and eventually also pursued the case because they see merit in the case.  I don't think there's anything controversial in any of that.


VICE PRESIDENT HATCHER:  What's useful about that evidence is that we have experience of employers who under the Alpine Resorts Award, then under the general awards, and the evidence didn't disclose that although they find the Alpine Resorts Award more convenient that they suffered any particular business detriment or that they turned a profit into a loss or they were struggling in some sense.


MR IZZO:  No, there wasn't evidence that on transition that they became unprofitable.  I think that's right.


VICE PRESIDENT HATCHER:  Or suffered any particular difficulties, as far as I can tell.


MR IZZO:  Well, I think some of them talk about steps that they have taken to address some of the provisions in the more general awards.  We heard from Ms Clark the way she rosters work or delays certain cleaning work to try and avoid the Sunday penalty rate.  So, obviously there have been some business responses, but it's not all the businesses that were subject to the Alpine Award - sorry, that was applying the Alpine Award and then changed approach.  So I think it's difficult necessarily to draw significant inferences from the comments of those few that did have that misunderstanding.  Again, I say that in relation to which terms and conditions are more appropriate, the better material to rely upon is the exercise that we took you through in terms of what the conditions are and the terms are in each award and how they better align to the businesses we have talked about.


In relation to the comments that were made during award modernisation in the exchange between Giudice J and Mr Harmer, I have to say I wasn't aware of the subsequent written correspondence of the SDA.  I was aware of the SDA's comments on transcript and I didn't think that that rectified the issue.  I think the written correspondence sheds it in a different light.  I think the exchange was unhelpful because it created confusion about the existence of our businesses.  I think in light of the SDA correspondence, we probably can't press that point at all, really.  I think the Commission eventually must have been aware, although there wasn't significant evidence and argument again.  So we say it wasn't properly looked at, but we don't press the point about the misunderstanding.


There was a brief point made by Mr Bruno about the AWU agreeing or, sorry, there being an attempt to remove casual public holiday penalty rates in the award and that was resisted by the Commission at some point.  We say it's not really relevant to the issues we're talking about because the public holiday penalty rates in this award are no different or, in fact, they're higher than in the general awards and the reality is that it's the weekend penalty rates that are a distinguishing feature and they're the penalty rates that were determined not to be included in the award.


Again, we have heard this reference to, "There's feeder towns.  Some feeder towns are in, some feeder towns aren't."  That's not right.  There's only one so called feeder town that is in and that is Dinner Plain and the reason Dinner Plain is in is because it has a ski lift and ski run.  It is very close to Hotham as well, but the reality is, it is of a different nature to any other feeder town.  And as I have said, we concede if there is some discomfort in relation to Dinner Plain that can be dealt with on an isolated basis.  But the reality is, there is no other feeder town in the coverage.  All other coverage relates to ski resorts and the businesses immediately in that vicinity.


A point was made about the deduction provisions of the Hospitality Award in relation to accommodation subsidies.  I just want to bring to the Commission's attention the prevailing obligations of any business absent a specific condition and award is that the obligations under the awards need to be paid in money and need to be paid in full.  Now, that's as a result of the provisions of the Fair Work Act and I think it's section 323.  Yes, 323:  "An employer must pay an amount payable to an employee in money in full at least monthly."


So if any of these employees were to move onto the Alpine Resorts Award, there is not any danger that they are going to lose out on the safety net because all of a sudden an accommodation subsidy is going to be provided.  It is still the obligation of each of those employers to pay the award rates in money and in full.  What the employees do need to do, though, is source accommodation and it may be the case that the employers say, "Well, you can rent at a very high rate or we have got rent at cheaper rates", and that's entirely legitimate and appropriate and the employers decide to subsidise the cost of their rent because they know they need to, so be it.  That doesn't affect or in any way detract from the safety net.  So in a sense, the Hospitality Award is less favourable because it allows employers to deduct from moneys payable under the award an amount in respect of accommodation provided.  The Alpine Resorts Award does not do that.  So that's an example where the Hospitality Award is less favourable to employees than the Alpine Resorts Award.


There is only two further points, your Honours, and I will be very brief.  The first is there was a comment by Mr Bruno, and I did address this previously, but I just want to make sure our position is understood.  There was a comment that the penalty rates decision has determined that for these employees the rates of pay and penalty rates are appropriate.  We do not accept that position because we say that this argument was not presented to the penalty rates Full Bench.  It was part of the four yearly review at the same time as the penalty rates four yearly review was on foot.  Both proceedings have been side by side since pretty much the beginning of 2014 or 15 and none of these arguments were ventilated.  To that extent, it could not be said that the Full Bench turned its mind to this issue and so there would be no inconsistency in terms of the outcome.


The other issue about the comments about penalty rates, everything that Mr Bruno has raised today expresses effectively a general dissatisfaction with the penalty rates in the award.  There is nothing that he has said that applies to the businesses we represent that does not apply equally to the alpine lifting companies.  He has said that the employees in these regions, well, there might be other reasons why they like to work weekends and they're away from their families.  He has raised a number of matters that we don't necessarily agree with that says that there is other reasons that make weekend work undesirable.  But that applies equally across the board in the region and so his complaint or his concern is essentially saying that he does not agree with the penalty rates in the award in whole.


Firstly, there hasn't been an application by the SDA to vary that award and they haven't put that position so there is an inconsistency in their argument with their actual position in the proceedings, if you like.  That's the first point I would make about that.  The second point is, and we don't necessarily urge this approach, but if the Commission is moved by Mr Bruno's arguments, then the answer is to look at the penalty rates in the award.  The answer is not to say:  "Well, these businesses shouldn't be in."  Because then effectively you're saying:  "Well, we agree there is a problem with the penalty rates, but we'll leave it okay for this group of employees who are the very same people as the other group that we represent."  So if there is a general concern about penalty rates, it's one that applies across the board and has to be dealt with on that basis.


Just bear with me one moment, your Honour.  The final argument that I just wanted to deal with was Mr Harmer mentioned that there is other businesses up the mountain so to speak that wouldn't have the benefit of this extended coverage, the medical centre, childcare, for instance, there might be a childcare provided.  There might be other businesses as well, like I mentioned, hairdressing.  We say those businesses are not businesses primarily servicing the snow sports enthusiasts.  They wouldn't have the same seasonal fluctuation.  Certainly a medical centre, a hairdresser, even private childcare, if there is the use of childcare facilities it's generally parents sending their children to ski school and other type facilities provided by the resorts to ensure that their children are actually on the mountain doing the same thing as them albeit under supervision.  It's not the case, however, of any childcare operators or any kind of prevalence of them in the alpine region.  We have not come across any of those businesses.  Our understanding is that the primary childcare provision is really coming from the resorts in terms of ski schools and things like that.


So that's pretty much everything I would like to say.  I think the only final thing is that there are some references made to the moving feast and things like that in terms of the draft determination.  We had endeavoured at the beginning of the proceedings to put on the draft determination that we felt was correct for the employers in the industry.  The evidence unfolded and we have had significant evidence over the course of the last four days and yesterday we sought to make an amendment to deal with something.


I think that the appropriate course of action is for the Commission to determine whether it is moved by our submissions and our evidence and if it is, as Mr Harmer put, we can certainly arrive on the correct drafting of the determination.  I don't think that's a problem.  And things about Corin Forest and Skitube drivers being left out, none of that was a problem on Monday and certainly wouldn't be if we look at some revised drafting.  They are the submissions, your Honours, and as I mentioned, we don't anticipate playing much further of a role in the proceedings, but do reserve our position if there is something that we feel we need to address in the subsequent claim.


VICE PRESIDENT HATCHER:  Thank you.  Just give me one second.  All right, we might take a short morning tea adjournment now for about 10 minutes and then we will start, Ms Fitzgerald, with your client's application.

SHORT ADJOURNMENT                                                                  [11.10 AM]

RESUMED                                                                                             [11.25 AM]


VICE PRESIDENT HATCHER:  Right, Ms Fitzgerald.


MS FITZGERALD:  As the Commission knows, the Mount Hotham Resort Management Board seeks its own particular confined variation to the award's coverage.  The Board filed its own draft determination on 30 November 2016.  Does the Bench have a copy of that draft?




MS FITZGERALD:  As you can see from the proposed variation, it is a confined variation and we're indebted to the Commission for facilitating the limitation of our involvement in these matters to today.  The amendment sought is to amend the coverage provision of the award in clause 3.1.  When one looks at that amendment, one can see that the definition is simply been augmented by an additional subclause so that Alpine Resort means, first what it currently means -


Any establishment whose business, among other things, includes alpine lifting.


The proposed addition is -


And/or any establishment which has statutory responsibility for management and/or operation of an alpine resort, whether or not that establishment operates an alpine lift.


VICE PRESIDENT HATCHER:  Does that cover other persons apart from your client?


MS FITZGERALD:  That will cover other resort management boards in Victoria.


DEPUTY PRESIDENT DEAN:  How many are there?


MS FITZGERALD:  There are four.


DEPUTY PRESIDENT DEAN:  Four plus your client or four including your client?


MS FITZGERALD:  Four including.  I will say on that front, that one of those resort management boards is already covered by this award, because it operates an alpine lift.


VICE PRESIDENT HATCHER:  Which one is that?


MS FITZGERALD:  That is the Mount Baw Baw Board and you'll see from the evidence given by the Association from Mr Girling, in his witness statement at 2.4 of his witness statement, the Association's members consist of the following alpine lifting companies.  At (f), Mount Baw Baw Alpine Resort Management Board, so that's one of our colleagues.


One of the four is already in, because it operates a lift and we would seek to remove what we say is a relatively arbitrary feature of the coverage, which is that whilst we operate a number of features of our resort, we manage all the features of our resort, but we don't operate a lift, but some Boards do.  So, aside from us, our amendment would include two Boards that are not currently included on the basis of their lifting.


While we're speaking about lifting - - -


VICE PRESIDENT HATCHER:  So, two other ones you mean?


MS FITZGERALD:  Yes, two others.




MS FITZGERALD:  Those are Falls Creek, Mount Buller and Mount Stirling Resort Management Boards.




MS FITZGERALD:  There was a question earlier from the Bench in relation to what alpine lifting actually means.


VICE PRESIDENT HATCHER:  That was more facetious than serious.


MS FITZGERALD:  The Bench is right, there's no definition in the award of alpine lifting.  In the Victorian legislation that creates the Board and gives us functions and responsibilities over alpine areas, which is the Alpine Resorts Management Act 1997 (Vic).  I don't say that this applies under the Award, but there is a definition of ski lift and what's memorable about that definition is, it covers things that don't actually lift.  The definition is -


A ski lift is any mechanism not being a vehicle provided for the transport of persons up and between ski slopes.


MS FITZGERALD:  That's a ski lift.  What's notable about that is it covers those magic carpets, that just move you along, not lifting you, and it also covers pommers, which is something you put between your legs and you're not lifted.  The lifting isn't relevant; you're being transported - under the Victorian legislation, transporting people up and between ski slopes.


All that says is that the Victorian legislation doesn't require any particular sort of transport.  It's clear that it can't be a bus, being bussed between two ski fields, but it's a mechanism.


VICE PRESIDENT HATCHER:  What about a helicopter?


MS FITZGERALD:  A helicopter - no.  I think that is a vehicle, because those are most certainly used, and they're most certainly used at the resort that I represent.  That's the first amendment and the second amendment is to clause 4.1, which also introduces this confined additional group.  The Board would add, after the words -


This industry award covers employees throughout Australia who operate


Then it would be after operate -


or have statutory responsibility for management and operation of an alpine resort


We say that is that very confined group of Victorian Resort Management Boards who have statutory responsibility for management who may choose to operate, but don't necessarily operate and because they're not operating, won't currently be caught, because they're not operating lifting services.


VICE PRESIDENT HATCHER:  That wouldn't capture national parks in New South Wales?


MS FITZGERALD:  No.  My understanding is they don't have statutory responsibility for management and operation of the resort which is what we specifically do have that under the legislation we have statutory responsibility for it.  We're allowed to contract some of those duties with other people and most of us have, three out of the four don't operate any of the services themselves, but one does.  There's been no special statutory provision for Mount Baw Baw, they've done that within the powers given by the Act.


VICE PRESIDENT HATCHER:  Historically, was it any different than it is for the decision at some stage of these Boards to outsource the operation, or have they always outsourced?  Perhaps we can ask Mr Hutchins that.


MS FITZGERALD:  I think that's probably right.  My understanding from his witness statement is that he hasn't had 40 years in the industry, but it is quite a long time in the industry, so I will ask some additional questions.


I do understand that there have previously been these Boards and I know anecdotally that, for example at Mount Buller, Mount Buller was never operated by a state entity; it was always a number of individual ski lift operators.  But that's most certainly evidenced from the Bar table.


We say the Board shares many of the features - - -


VICE PRESIDENT HATCHER:  Sorry, go on, yes.


MS FITZGERALD:  The Board shares many of the features of that confined group of employers that are currently covered by this industry award and it certainly operates in the same industry as them.  In fact, we say the evidence will show that it operates hand in glove with the operator of the Mount Hotham Resort which operates lifting services at Mount Hotham.  That the evidence will show that the manner in which these two entities operate, the resort operator and the Resort Management Board is very much a hand in glove operation.


The factors that make it fair and necessary for those employers to operate under the bespoke provisions of this award, which accommodate the weather dependent and resource intensive nature of the alpine and snow sports industry are equally applicable to the Board.  The opposition by the Australian Skiers Association to the Board's claim for coverage, in my submission, is based on a New South Wales-centric view of the industry.


Unlike in New South Wales, Victorian ski resorts are managed by the Boards established under the legislation that I just mentioned at the Alpine Resorts Management Act.  In Victoria, these Boards do much of what the association's members do in New South Wales.  For example, in New South Wales, it's Kosciuszko Thredbo Pty Ltd that provides the long term leases to ski lodges and other residents, I understand.  They do the ski patrol service and they manage the garbage collection.


In Victoria, the Boards do these things.  In Victoria, it's also possible, as I've said, that the Boards could operate the lifts and the snow sport schools themselves.  But generally, they contract with private companies to run these operations.  As I've mentioned the Mount Baw Baw Alpine Management Resort does run lifts and would therefore already be covered by the definition in the award.


There may be evidence also to show that there seems to be one Victorian member of the Association, on my instructions, like the one that runs the Lake Mountain Resort that does not run lifts, but does run a commercial snow sports resort, but based on cross-country trails only.  Because it's cross-country the commercial operator does not need to run lifts to operate the resort.  I'll have some questions for Mr Girling about that, but it seems that it's been accepted as a member and an alpine lifting company despite the fact, that from my instructions, there are no lifts or magic carpets or pommers, none of the ski lifts within the Victorian definition operating at Lake Mountain.  It may well be a member of the Association but not covered by the Award for that reason, but the Association appears to accept it.


The Association also considers the Mount Baw Baw Alpine Resort Management Board to be an Alpine Lifting Company, despite the fact that it's a Board like us, and it's established under legislation and is most certainly not a company.  All this is simply to say that the mere fact of whether an entity does or does not run lifts, ought not be determinative of coverage under this industry award.  Coverage ought be extended to entities that have statutory responsibility to manage resorts as well, where management of the resort and operation of the lifts are split, as they generally are here in Victoria.


In our submission, the operation of resorts in New South Wales has coloured the coverage clause of this award and a large part of that may well be because none of the Boards were involved in the drafting of the original award because at that time - - -


VICE PRESIDENT HATCHER:  There was award modernisation, Victorian Award, was there not?


MS FITZGERALD:  Yes, the Victorian Alpine Resorts Award 1999 and that was still operative at the time this award was being modernised.


VICE PRESIDENT HATCHER:  Was the issue raised in respect of that Award?


MS FITZGERALD:  At that point, we were still covered by the Victorian Alpine Resorts Award and we did not participate in the negotiation of the original or modern award or its coverage clause.  That was an award I understand, which only covered Victoria's Resort Management Boards.  It was very narrow.


VICE PRESIDENT HATCHER:  When that was done were the Boards operating the resorts?


MS FITZGERALD:  My understanding is that they were managing them.  My instructions are Mount Hotham they most certainly were not operating ski lifts.  But in relation to this question of operation or not-operation, my submission is that any of the four Boards could, subject to their contractual arrangements with the resort operators, set up a ski lift and start operating under the provisions of the current Victorian legislation.  That's a function that they're allowed to perform.


VICE PRESIDENT HATCHER:  Mr Harmer, where do we find that old Victorian award?


MR HARMER:  I'll just locate that for you, your Honour.


VICE PRESIDENT HATCHER:  Annexure S to Mr Girling.


MR HARMER:  Thank you. Your Honour, I think that's the private operator award, the AWU one.


VICE PRESIDENT HATCHER:  There was another one.


MR HARMER:  There is one, and it is in the material somewhere.


VICE PRESIDENT HATCHER:  Keep going Ms Fitzgerald while we find it.


MS FITZGERALD:  Yes, now when Mr Hutchins gives evidence, I will seek leave of the Commission to update the evidence that Mr Hutchins has given in his witness statement which is now some - it's a number of months old.  The Board will seek leave to update its evidence since it was filed, and if allowed, that updated evidence will in fact show that this Board now - it doesn't run a ski lift, but it does run an indoor ski training facility that is very much like running a ski lift, in that it is a - it runs a - it's an indoor, sort of 10 metre wide, mechanical treadmill like ramp that is skied down on an adjustable gradient.


I don't say that it would fit within the Victorian definition of a mechanism provided for the transport of persons up and between ski slopes.  It is in fact a mechanical ski slope, where the slope moves and you ski staying still.  I don't say that we now sneak into the award.  I highlight that we now operate this facility and we now have ski instructors teaching to ski in that facility.  The question of whether we operate a ski lift or not is a fickle determinant of whether we are running snow sports or whether we're appropriately covered by the award.


VICE PRESIDENT HATCHER:  Can we call Mr Hutchins now?


MS FITZGERALD:  Yes, I'm content to do that now.  It may involve - Mr Hutchins can describe it.  I am content to see how much the Bench is annoyed by this proposal and I also have some footage of someone on it, so you can see it being used, on my laptop.  I don't seek to engage any technology, but I'm happy to have it handed around.


VICE PRESIDENT HATCHER:  If it's on a stick, you can just tender it and we will look at it.


MS FITZGERALD:  But otherwise I'm content for the witness - it can be described very easily, if it becomes an annoyance.


VICE PRESIDENT HATCHER:  Can you come forward Mr Hutchins?


THE ASSOCIATE:  Please state your full name and address.


MR HUTCHINS:  Jonathon Raymond Hutchins (address supplied).


EXAMINATION-IN-CHIEF BY MS FITZGERALD                     [11.43 AM]


MS FITZGERALD:  Mr Hutchins you've provided in this statement in this matter.  Have you had an opportunity to review that witness statement?‑‑‑Yes, thank you.  Your Honours, I did make some errors in terms of my history which I'd just like to correct on rereading the statement.  At clause 3, it does state that I was Chairman of the Victorian Teachers Mutual Bank.  I was actually Chairman between 2009 to 2015 and in clause 4, it was actually from 2004 to 2007, I worked for the Mount Buller Race Club.  In clause 5, during that intermediate period I did work for Coles Myer for a period of just over 12 months.


Paragraph 3, what were you changing there?‑‑‑From 2013 to 2014, change to 2009 to 2015.  Clause 4, from 2004 to 2007.


You were working at the Mount Buller Race Club?‑‑‑Thank you.


Then in between, at which point you worked for Coles Myer for a year at what point?‑‑‑In 2002.

***        JONATHON RAYMOND HUTCHINS                                                                                 XN MS FITZGERALD


Thank you.  Was there any other correction to your statement?‑‑‑No.


Do you seek to rely on that evidence in these proceedings?‑‑‑Yes.


Thank you and I tender that.


VICE PRESIDENT HATCHER:  The witness statement of John Hutchins dated 31 March 2017 will be marked exhibit V.



MS FITZGERALD:  With the Commission's consent, I would like to ask the witness some additional questions.




MS FITZGERALD:  I think probably the first is we might just ask about this new facility that you heard me discussing with the Bench.  When did you build or get this new facility?‑‑‑It was built in 2015 or constructed - relocated from a location down here in Melbourne.  But really commenced operations in 2016 to the public this year.


What is it?‑‑‑It's a mechanised indoor ski facility or sporting facility which consists of a ramp, much of the surface like an Astroturf, which has a slight mist put over the top which lubricates the surface and participants then use their skis on it without wax or edges to simulate a downhill skiing experience.  It's built on a ramp basis.


I might ask if the witness could have my computer in the box, just to describe that process on one of the MP3's.  If you can just turn it - you may or may not be able to see this.  Absolutely not a vital piece of evidence, it's just easier to understand what it is if you see it working?‑‑‑You can see here - I'm hoping you can see here, across 10 metres, you can see the white fabric which is like the Astroturf and the young child here, it's the first time he's on it, he's just emulating what he would do on a ski slope, using skis and the boots.  You can see here, if he has an accident or something, there's an operator there that can stop the ramp.  He can then readjust himself, get ready.

***        JONATHON RAYMOND HUTCHINS                                                                                 XN MS FITZGERALD


VICE PRESIDENT HATCHER:  So, it's like a treadmill?‑‑‑Very much like a treadmill, your Honour.


MS FITZGERALD:  Who owns and operates that?‑‑‑The Resort Management Board operates that facility.  It's called Hotham 365.  We operate it throughout the year to people that are wanting to use the lift or particularly during winter when there's snow play.  People will come up and use toboggan plan.  It's to encourage them to try and experience.  We can do it a lot cheaper than selling them all a ticket.


VICE PRESIDENT HATCHER:  Why did the Board get into operating that instead of the actual operator of the resort?‑‑‑Because we saw it as an opportunity for the resort to go 365 days of the year and also provide that learning transition experience from a snow play operator who just comes up to throw snowballs and perhaps toboggan, to get them into the operation, or the adrenaline thrill of simulating a skiing or a boarding experience.


MS FITZGERALD:  I think what the Bench is particularly interested in, why did you do this and now Mount Hotham Ski Company?‑‑‑Good question.  We probably had the facilities to make it available.  We did the negotiations with the previous owner of the lifts and then we installed it at our behest.  We advised the lift company in that process, but they weren't interested in partaking of it.


If I wanted to buy, how much would one of those cost me?  What do they cost?‑‑‑For us, it was about $40,000 to install and put a new fabric on the machine.


What do they cost to buy?‑‑‑Out to half a million dollars new; this was a second hand facility that was operating down in Moorabbin and was no longer required.  The operator there provided it to us.


What employees do you employ to work in that facility?‑‑‑We have three qualified instructors that work in that facility.  They are registered with the Australian Professional Snow Sports Instructors, and they can provide tuition to beginner skiers on how to operate the skis and on the ramp itself.


VICE PRESIDENT HATCHER:  In paragraph 17(b) of your statement on page 5.  No, I'm sorry, I'm looking in the wrong place.  Yes sorry, paragraph 41 and 40, so indoor ski board instructor, that's who is operating that?‑‑‑That's right, (q) I think in my list there.

***        JONATHON RAYMOND HUTCHINS                                                                                 XN MS FITZGERALD


Do you have any ski instructors apart from those?‑‑‑No.


Thank you?‑‑‑Not that we employ a such; they may be qualified as ski instructors, yes.


MS FITZGERALD:  I think that was all about that.  I might just ask, just for the safety of my laptop, I'll get that back, thank you.  There are some others, but I think that's horribly clear.  It's not a lift, but it is a mechanism that facilitates skiing, I suppose.


I just have some broader questions.  You provide some information about the last ski season in your witness statement and that is at paragraph 32, about the 2016 ski season, the number of visitors.  What can you tell us, perhaps just in terms of the 2017 ski season and how that compared and whether it differed?‑‑‑Yes, so in 2017 it took in response to the variability of snow season; it's a bit like farming.  You have good years and bad years.  2016 I think we did about $2.8 million as our resort entry through the gate.  This year we did $3.2 million which is a roughly 16 per cent increase.  That correlates to some of the increases that we've seen through our lift company at Mount Hotham, some of their increases as well, somewhere in the vicinity of 260,000 skier days to 285,000 skier days.  There's a comparable variability between our operations and the lifting operations.


There's some evidence given about the variability of the link to the ski season, who controls when the season opens and when it closes?‑‑‑Under the Alpine Resorts Management Act the Board has the power to close the snow season and that enables us to charge resort entry.  Other requirements under the regulations such as fitting chains during those periods are required and mandatory to carry chains.  It's actually the Board that makes its declaration under the Alpine Resorts Management Act.


How do you decide whether to declare the season open or closed?‑‑‑We do it in consultation with our commercial operators in terms of some of the lift companies included, but predominantly, traditionally, we've started on the Queen's Birthday weekend and then finished round about the mid of the school holidays which is the last weekend of September.  This year with the strong snow season, we finished at the end of the school holidays, which is the first week in October.


What was the impact of extending out the 2017 season by a week, on your employees?‑‑‑The same constraints I guess from the other employees on the mountain.  Some that had already made arrangements to leave the mountain, so we had to cover for those that had other arrangements.  We had to put on our normal staff, our ski patrol that had to look after all the health and safety aspects on the slopes for staying open for that extra week.  We were fully staffed.  We had the bus systems and everything else going at the same time.

***        JONATHON RAYMOND HUTCHINS                                                                                 XN MS FITZGERALD


Your witness statement says something about a break-up between who does snow making and what areas.  The skiing company does snow making for the ski runs, and you do it for the snow play areas and the village.  What is snow play?‑‑‑Snow play is really people tobogganing.  We offer some small snow mobile rides, just making snow men, throwing snow balls around the place, some cross-country skiing.  We actually had an outdoor restaurant, there's some dog sleds that walk around and they all use some of the snow that we provided within the village.


Who operates those snow play, tobogganing?‑‑‑The Resort Management Board control the licences under the Act and permits those people to use the resort for those purposes.


They might be subcontractors that you organise?‑‑‑Normally they require a permit under the Alpine Resorts Act to operate.


But it's not the skiing company?‑‑‑No.


There are obviously things under your contractual arrangements with the skiing company that the skiing company pays you for?‑‑‑Mm-hm.


You've given evidence about that, and you provide water for their snow making and things.  What other, if any, services do you provide on an ad-hoc basis during the season?  Do you do anything else for them during the ski season that's not contractually required?‑‑‑Yes, we work cooperatively.  There's times we do snow clearing and there'll be snow in certain areas of the resort that we're moving around.  If there's shortages in the resort, we'll move that snow to there so the ski runs can operate.  We also do some snow making as you mentioned.  We might do some grooming or move some snow around in certain parts of the resort, as required between the lift company and ourselves.


What do you charge for those services?‑‑‑We don't charge anything for those services.  It's just done on a cooperative basis.  It's in their benefit if they get more people; people on lifts that benefits us.  More people are coming to the resort, that improves the amenities for our guests, which makes them more likely to return and promote the resort, which is one of our objectives.

***        JONATHON RAYMOND HUTCHINS                                                                                 XN MS FITZGERALD


What happens when the - who's responsible for putting the ski lifts on wind hold?‑‑‑The lift company are actually responsible in regards to wind hold, but in terms of the safety of the slopes that may be around those that our guests partake in, that's really the ski patrol function.  So, things like avalanches, if there's an avalanche risk, we will deem that it's unnecessary or not safe to do those, if there's hazards, if there's fall outs on the creeks where the snow might be giving way.  We'll then say that it's not advisable to open those lifts and have public access to those areas.


What happens when the lifts are on wind hold?  How might the Board get involved?‑‑‑There are times on wind hold - we're actually fortunate on Mount Hotham being on the ridge line, so if somebody over - lifts might be operating further down the mountain, so we will actually use bus transport to bring them from that lift to a point further up the mountain where the lifts may be on hold and people can ski from that area down to the bottom lift.  It supplements, if you like, the lifting capacity of the lift company when the lifts are on wind hold for safety reasons.


Those buses, who provides the buses?‑‑‑The Resort Management Board provides the buses.


What extra, if anything, do you charge the ski company to use your bus instead of the lift?‑‑‑There's no extra charge to the lift company for those.


What's the arrangement with the ski company if the ski company want to open a run outside of the standard hours?‑‑‑To do that they require under the lease conditions, and I think it might be in my statement, the ski patrol have to then come to the party and go and check all the runs that are around that lift and give the okay for the lift to operate and the public to be allowed out onto the ski slopes.


Who pays for those extra staff hours for your ski patrol?‑‑‑The Resort Management Board will meet the cost of providing those ski patrol members during those additional times.


There's been some evidence about the type of people that, for example, the Mount Hotham Skiing Company Data Resort Operators employed, and that they employ a lot of ski enthusiasts.  In terms of your employee base, what proportion base, from your personal knowledge, are ski enthusiasts?‑‑‑I would say the vast majority.  If it's less than 95 per cent I would be quite amazed that people don't have a passion for the area they work in.  We talk about providing amazing shared alpine experience and everyone partakes of that.


That was the only additional evidence that I had to ask about.


VICE PRESIDENT HATCHER:  Is there an enterprise agreement currently in place?‑‑‑There is.  There was one commenced in 2016.

***        JONATHON RAYMOND HUTCHINS                                                                                 XN MS FITZGERALD


Is there any difficulty with that enterprise agreement?‑‑‑There's some concern in terms of processing that, and I'm not aware of the full complexities of it, but it was referred under the BOOT test to both the Alpine Resorts Award and the State Government Services Award, I believe.


In terms of its application to your operation, is there any difficulty with that agreement?‑‑‑No, not at the moment, but it's the clarification of whether the Alpine Resorts Award is the relevant award for that enterprise agreement.


Can we get a copy of that agreement at some stage?


MS FITZGERALD:  Yes, I do.  I have a copy here which I'm sure I marked.


VICE PRESIDENT HATCHER:  Yes, we'll get a copy over the luncheon adjournment.


MS FITZGERALD:  Thank you.  There's one additional question arising out of - in relation to whether any of your employees have ever worked for the skiing company and what crossover there is between your employee group and the Mount Hotham Skiing Company?‑‑‑We employ people from the lift company who come and work for us at different times.  We have mechanics who have worked for us and now work for the lift company.  So, there's a transposition between the two companies.


VICE PRESIDENT HATCHER:  Do you ever have people working for both simultaneously?‑‑‑Not that I'm aware of.  Certainly, some work in the winter for the lift company and then come and work for us in the summer.  Very rarely, I would think, we would have - we keep them too busy, your Honour.


Thank you.


MS FITZGERALD:  That was it for me Deputy President.



CROSS-EXAMINATION BY MR HARMER                                   [12.01 PM]

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


MR HARMER:  Thank you, your honour.  You're currently engaged under the State Government Agencies Award 2010, correct?‑‑‑I believe that's the case; I'm not directly involved with the legalities of the award.


Right, well, then can I just ask this.  The award has a large number of carve outs of other awards.  Do you know if your - - -?‑‑‑Sorry, could you repeat that?


Sorry, the award you're currently under has a large number of exclusions of other awards, or carve outs, if you like.  Has your Resort Management Board ever attempted to take itself out of this particular award?‑‑‑Not that I'm aware of.


You're governed by the Victorian legislation, the Alpine Resorts Management Act 1997.  You understand that?‑‑‑Yes, that's correct.


Under that Act there is a governing council, correct?‑‑‑There's a coordinating council, I think.  Is that the Alpine Resorts Coordinating Council you're referring to?


Yes, that's correct.  It's the role of that Council, is it not, to coordinate across the Resort Management Boards the specific functions of those Boards under this legislation, correct?‑‑‑Again, I'm not a lawyer, but in terms of my interpretation of the Act, that actually reports to the Minister directly and the Resort Management Boards report to the director, and so they provide more of an advisory service to the Minister, rather than the operations of the resorts.


But they also provide a coordinating role across the group of Resort Management Boards, correct?‑‑‑I don't - they may do advice to the Minister, but they don't provide any edicts to any of the Boards and their operations, no.


It's only your Resort Management Board that's making this application, correct?‑‑‑That's right.


No other Resort Management Board is pressing to change its award?‑‑‑The other Resort Management Board's CEOs, I've contacted and are supportive of what we're doing here today.


Well, with respect, why aren't they here today?‑‑‑That's a very good - you'd have to ask them Mr Harmer.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


Well, this matter has been going on for a long long time.  Why are not any of the other Resort Management Boards participating as an applicant or as witnesses or as anything?


MS FITZGERALD:  Objection.  This witness can't give any evidence about what other people - - -


VICE PRESIDENT HATCHER:  I think the answer was, you'd have to ask them.


MR HARMER:  Thank you, your Honour.  In preparing to attempt to transition to the Alpine Resorts Award, have you undertaken any comparison of the conditions and the impact on your employees of that transition?‑‑‑I'm not aware of any, Mr Harmer, no.


Well, if your organisation had, you of all people, would expect to have had that reported to you, wouldn't you?‑‑‑As I say, I'm not aware of any report that's come to me.


Why do you say that it's necessary for your Resort Management Board to go into the Alpine Resorts Award?‑‑‑I think the conditions that it refers to in terms of the snow conditions, working in an alpine environment which can be hazardous, the variability in a lot of the aspects that are covered by that, refer to our industry and that makes it similar type arrangements.


It's just industry similarity, not anything else?‑‑‑I think that relays onto the conditions that we employ our staff under.


Can you point the Commission to any specific conditions that you think that you need as an employer in respect of your employees, that you don't have under your existing award?‑‑‑No, I can't go through the award; that's not my area of expertise to respond to it.


But there would be people reporting to you whose expertise that is, correct?‑‑‑That's correct.


Can you think of any report, recommendation to you at all, that moved your Board to make this application?‑‑‑Predominantly around, I guess, the overtime provisions and some of the other aspects of the award, but the actual specifics, I just know I've been involved in the enterprise agreement rather than the award structure.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


Well when you say overtime, do you have in mind penalties of some kind?‑‑‑There's some provisions there of working up to 10 hours in the day at single rates and carrying time that was one of the attractions of it.


Were weekend penalties an issue for you at all?‑‑‑Not under the enterprise agreement, no.


Under the award you're currently under, compared to the Alpine Resorts Award, is that an issue for you; the penalties that are paid?‑‑‑Look, I can't make those comparisons between the awards.


VICE PRESIDENT HATCHER:  Mr Hutchins, is there a problem here we're trying to solve?‑‑‑Yes, it was the uncertainty about where the enterprise agreement, which award it should actually sit under.  In my statement there, there was some concerns about whether we were a state government agency, whether a public sector agency.  We're currently under the state - I can't remember, the State Agency Award, which isn't really appropriate for an alpine resort that operates in a seasonal business with a variable operation and has - - -


But at the end of the day, you've made an enterprise agreement, it's been approved by this Commission and it's operating satisfactorily?‑‑‑That's true.


Is that all correct?‑‑‑Yes, and that enterprise agreement is for three years, so we're now going into the next phase of preparing for the next enterprise agreement and to avoid some of the conflict and the confusion between our staff and union in regard to that, what award we're actually covered from, I was hoping this resolution would give us clarity about what we're actually working to.


What union or unions have you dealt with in terms of - - -?‑‑‑The Australian Workers Union.  It either has been a very convoluted process in terms of getting the enterprise agreement through government and for the basis of how it's structured.  Whereas, the enterprise agreement we've got at the moment seems to fit, from my reading of it, very much under the Alpine Resorts Award, rather than the State Government Agency Award.


MR HARMER:  Management of these alpine resorts has been in the hands of statutory bodies, including predecessors to your entity for many years, correct?‑‑‑Yes, I believe that's so.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


For many decades?‑‑‑I believe in the Alpine Resorts Board we were constituted in 1998.  Prior to that it was the Alpine Resorts Commission in 1983.  Prior to that it was either the Forestry Commission, the State Electricity Commission or Crown Lands.


Yes, and so there's been a gradual transition of regulation from state public service entities dealing with the environment and parks and issues like that, into these statutory bodies for each resort are, correct?‑‑‑Actually no, the Forestry Commission and the SEC was a state government authority.  That transitioned into the Alpine Resorts Commission, which was a state government authority, which has then gone into a Resort Management Board, which is a state government authority.


Incorporated as a separate employer in this case?‑‑‑Sorry?


VICE PRESIDENT HATCHER:  The Board since it's cessation, did it ever operate the chair lifts, the ski lifts?‑‑‑Not at Mount Hotham.


MR HARMER:  Would it be true to say that a number of your employees have been with the authority for many years, the Board?‑‑‑Some have, some haven't, like any organisation.


All of your employees have come from - sorry, those long serving employees have been in the state public sector of employment for many years, correct?‑‑‑I wouldn't have thought so.  They would have been employed by the Alpine Resorts Commission, which was our predecessor at law, which was a statutory government authority.


It would be true though, wouldn't it, that some of your employees would see themselves as having a career path within the state public sector?‑‑‑I can't speak for them, but I certainly don't, from my own personal experience.


Can you inform the Tribunal, are you aware of employees within your organisation who are long serving in the public sector in Victoria?‑‑‑As I say, I don't believe they were in the public sector, I believe they've been employed by the Alpine Resorts Commission which was a statutory authority that then as a successor at law, was the Alpine Resorts Management Board.


Are you aware if your organisation as a public authority in Victoria, has any specific terms and conditions that correlate to state public sector employment in Victoria?‑‑‑Certainly the Victorian Public Sector guidelines are applicable to us as a state government authority, yes.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


Have you undertaken any analysis between those state public sector guidelines and this private Alpine Resorts Award you're trying to base your Board under?‑‑‑No.


Have you consulted any of your employees about the issue of transitioning to this award, compared to your existing award?‑‑‑Yes, the consultation has been through the enterprise agreement and the conditions in the enterprise agreement, not the award itself.


What were the changes that you affected through the enterprise agreement that assisted you in relation to your current award?‑‑‑Sorry?


What changes did you achieve under your enterprise agreement that we needed, compared to the current award?‑‑‑It wasn't so much changes, it was maintaining the conditions that we had under the old - I think it was the 1999 Alpine Resorts Award that we spoke about earlier.  It was maintaining those conditions into the new enterprise agreement.


That was an award regulating the Alpine Resort Boards forming in years previously?‑‑‑ Well, from 1999 I think until 2012. I'm not aware of the actual dates, but that would be my understanding.


Is it true to say that many of the functions that your Board performs are similar to a local council in the district?‑‑‑Some of the functions are, but we've got a broader range of functions.  There aren't many local councils in Australia that do snow clearing, provide a ski patrol service or do tourism.


The Mount Hotham area is closely connected to Dinner Plain, correct?‑‑‑There's 12 kilometres between Mount Hotham and Dinner Plain.


Dinner Plain is under the local shire council?‑‑‑The land manager there, it's also freehold land, which is governed by the Alpine Shire, whereas we're crown land under the Crown Land Reserves Act.


But the local council at Dinner plain would also have to deal with issues of snow on roads and other municipal duties that you perform, correct?‑‑‑You'd have to - they do - I'm aware of them doing snow clearing.  I presume they do the other functions.  They don't do any ski patrol functions which is a major function that we perform.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


Has there been any history of transitioning of employees between the local shire council and your organisation, given the similarity of duties performed?‑‑‑No.


You've indicated in your statement that you generate part of your revenue through activity in the snow region, correct?‑‑‑That's correct.


But your budget is otherwise subsidised by the state government budget?‑‑‑I wish it was.  In fact, we're actually non-funded by the government.  We actually have to provide our own funding.  There are instances, Crown is land manager, similar to what happened to Thredbo in 2010, we had a landslide or a fallout which caused a whole lot of hole, so the government as the land manager, or the owner of the freehold of the land, provided funding for that which I mentioned in my submission.


Do you get any funding at all from the state government?‑‑‑We can get - like a lot of applicants, we can get some Sustainability Victoria for some of our waste cycles, but it's actually interesting, I've tried - we certainly don't get Federal Government funding as a local government authority.  I've tried very hard to get the government to recognise us as a local government authority, but unfortunately that hasn't been available to us.


VICE PRESIDENT HATCHER:  Are you required to return some sort of a dividend to the government?‑‑‑No, not make a loss, your Honour.


MR HARMER:  Is the issue of wages costs important to your budget and funding?‑‑‑Yes, about 45 per cent of our costs are wages.  We're a service industry like many in the tourism and hospitality industry.  We're there to provide a service to guests.


Has there been any suggestion to you as CEO that moving to this Award will save you on labour costs?‑‑‑No, not save us on labour costs, clarify the position for my employees about what their terms of employment are.


Why do you say they're currently unclear?‑‑‑Because when we go through an enterprise agreement, there's this conjecture about are we under the Alpine Resorts Award or under the government State Agencies Award.


But when you went to put forward your enterprise agreement, it was your organisation that sought to have reference to the Alpine Resorts Award, wasn't it?‑‑‑That's right, so I believe.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


You've introduced the notion that you want to have reference in approving your enterprise agreement, to the Alpine Resorts Award, correct?‑‑‑I believe that is so, yes.


And are you saying is that the source of confusion for your employees?  Something that you've introduced?‑‑‑I think for employees and for our management team, in terms of what the actual conditions of the award and the advice I received from the council I get in terms of formulating the enterprise agreement.


VICE PRESIDENT HATCHER:  Mr Hutchins, when you say there's lack of clarity and confusion, who is it who thinks you are covered by Alpine Resorts Award?‑‑‑We see ourselves covered by the Alpine Resorts Award in terms of the terms and conditions that are involved in it, but when we go through government departments or through various bodies like yourselves to get it approved, there's some concern about what the actual award is relevant to the Resort Management Award.


But there's no doubt that you know that you're not covered because you don't operate an alpine lift.  You know that, don't you?  That's why you're here, you want to get - - -?‑‑‑Yes, that's right, but the terms and conditions that are related under the award in regard to, as I think Mr Harmer pointed out overtime, some of those and the variability that happens in our ski season and when some of the conditions that we have in our enterprise agreement are more relevant to the award, as I understand it, rather than the State Government Agencies Award.


MR HARMER:  In 2016 the State Government of Victoria announced a review of Resort Management Boards in Victoria, correct?‑‑‑I think it was earlier this year, Mr Harmer, 2017, January 2017.


I think that's when the recommendations came out and there are two key recommendations and both of those recommendations involve your specific board going out of existence, don't they?‑‑‑I wish I had seen the recommendations, but unfortunately they haven't been released, to my knowledge.


Sorry, I just looked at them on the website last night?‑‑‑Perhaps if I can clarify.  There were two proposed structures formulated.  They weren't actually - there's been no ministerial advice that that would be the undertaking.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


No, there's no choice as to which of the recommendations will be taken up, but the only two recommendations involve your Resort Management Board being put under one single authority regulating all the resorts, or being amalgamated across a number of Resort Management Boards, correct?‑‑‑They were the two that I know were included in the paper.  Whether they are the recommendations being considered by government, I'm not aware of that.


You're aware that the Alpine Resorts Award was the subject of proceedings in this Commission around 2009?‑‑‑Only from one of my readings of the submissions.  I wasn't actively involved in it at that time.


But to your knowledge, your Board didn't seek in any way to be involved in those proceedings?‑‑‑I can't speak for what happened at that time. I'm not aware of it.


You can't point to any time since that your board has tried to come under the Alpine Resorts Award?‑‑‑Not that I'm aware of.


Are you aware of any attempt by your Board to alter the award you're currently under at all?‑‑‑Sorry, can you repeat that one again.  I'm confused with the question.


Are you aware of any attempt by your Board to attempt to vary the award you're currently governed by?‑‑‑I believe this is the attempt we're making.


You gave some evidence today about an indoor facility for training skiers.  Do you recall that?‑‑‑Yes.


You'd agree that that doesn't involved transport up and between ski slopes as per the definition of a ski lift under your own legislation?‑‑‑Yes, I believe that's the case.


You've worked a long time in the ski industry, correct?‑‑‑Sorry?


You've worked for a long time?‑‑‑Since 1998.


You anecdotally wouldn't consider that in any way to be a ski lift, correct?‑‑‑Depending on the definition that you have of a ski lift, I haven't given thought to what a ski lift definition might entail.


Thank you, I have no further questions.

***        JONATHON RAYMOND HUTCHINS                                                                                      XXN MR HARMER


VICE PRESIDENT HATCHER:  Does anyone else want to cross-examine this witness?  Mr Duncalfe?


MR DUNCALFE:  No, your Honour, no questions from here.


VICE PRESIDENT HATCHER:  Ms Fitzgerald, any re-examination?

RE-EXAMINATION BY MS FITZGERALD                                   [12.20 PM]


MS FITZGERALD:  I just have one question in re-examination.  You were asked some questions about the enterprise agreement that is now in place.  What has the union's position, that's the AWU?‑‑‑Yes.


What's the AWU's position been during those negotiations about what award should apply when doing the BOOT?‑‑‑As I understood, it as the Alpine Resorts Award and the State Government Agency, but both had to meet the BOOT test.


Whose position was that?‑‑‑I can't recall.  I just know in terms of formulating the enterprise agreement submission, that we did the test against both awards.


Did the AWU take a firm position and if so what, about which award applied to your - - -?‑‑‑I wasn't involved in those parts of the negotiations.


No further questions.


VICE PRESIDENT HATCHER:  Thank you Mr Hutchins.  You're excused, so you can return to your seat.

<THE WITNESS WITHDREW                                                          [12.21 PM]


VICE PRESIDENT HATCHER:  Mr Harmer are we calling Mr Girling now?


MR HARMER:  Yes, thank you, your Honour.  We call Mr Girling to provide evidence in this part of the proceeding.


THE ASSOCIATE:  Please state your name and address.


MR GIRLING:  Gavin Alfred Girling (address supplied).

***        JONATHON RAYMOND HUTCHINS                                                                              RXN MS FITZGERALD

<GAVIN ALFRED GIRLING, SWORN                                           [12.22 PM]

EXAMINATION-IN-CHIEF BY MR HARMER                              [12.22 PM]


MR HARMER:  Mr Girling, you've obviously, previously given evidence in these proceedings.  You recall your statement was tendered?‑‑‑Yes, I do.


Could I just take you to that area of your statement dealing with the Resort Management Board which is section 8 commencing on page 10?‑‑‑Yes.


If the Tribunal pleases, I might at this point, just note that there has been objection taken to the nature of this material, which is in effect, Mr Girling summarising from a number of document sources.  We're agreeable to that being treated not as evidence, but as mere submission and I assert it as submission, but the annexures will stay in the statement.  So, in terms of evidence, however, as opposed to submission, all of that material can be struck from the statement.


Sorry, removed as a result of objection.


VICE PRESIDENT HATCHER:  What material is that?


MR HARMER:  I'm sorry, the whole of section 8.  There's been objection taken to counsel appearing for the RMB.


VICE PRESIDENT HATCHER:  That's all of the evidence, isn't it?


MR HARMER:  It is.  It's the totality.


VICE PRESIDENT HATCHER:  Why is Mr Girling in the witness box then?


MR HARMER:  Because, despite reaching agreement on that this morning, there's still a request to cross-examine him.  But I thought I'd just tidy up this part of the affidavit first.


VICE PRESIDENT HATCHER:  There's no right to cross-examine if he's got no evidence to give about the matter.

***        GAVIN ALFRED GIRLING                                                                                                         XN MR HARMER


MR HARMER:  Well, he's given evidence that's relevant to the issue of comparison between the resorts and operations under this award and the operations that are now sought to come under it and I understand that the cross-examination will go to that, if the Tribunal pleases.  But perhaps that's more a matter for counsel for the RMB.


VICE PRESIDENT HATCHER:  Ms Fitzgerald, if none of this evidence goes in, why is there a right to cross-examine?


MS FITZGERALD:  I had some questions in relation to the evidence given by Mr Girling on the first page of his statement, which relates to the nature of the businesses run by the associations other members.


VICE PRESIDENT HATCHER:  I think we're just inclined to leave paragraph 8 in, and the parties can make submissions about what use, if any, can be made of the material.


MS FITZGERALD:  I'm content with that Deputy President.

CROSS-EXAMINATION BY MS FITZGERALD                           [12.25 PM]


Thank you.  Mr Girling, I'll ask you some questions about the statement that you have with you.  I think there were also some questions about Mr Hutchins' statement and I'll read the bits of his statement that I'd like to put to you.  It looks as though you might not have anything other than your statement in the box with you?‑‑‑That's correct I have my statement.


At 2.1 of your statement you discuss the people that your association represents and you make a statement there that you represent the interests of operators of all ski lifts at all 11 resorts.  It's true to say though, that not all 11 resorts have ski lifts, do they?‑‑‑There are - if you're referring I guess to Lake Mountain and its inclusion, prior to 2017 Lake Mountain was operated by Belgravia Leisure.  Belgravia Leisure operated Mount Baw Baw and therefore Lake Mountain was included on the basis that the operator was at Baw Baw and therefore was covered under the award.  My understanding is from January 2017 the Southern Alpine Resort Management Board took operational ownership and I think you alluded to that before.  Therefore, specifically mentioned the Mount Baw Baw Alpine Resort Management Board in there who is also the operator of Lake Mountain.


VICE PRESIDENT HATCHER:  Mr Girling, what's the name of that board?‑‑‑The Southern Alpine Resort Management Board, your Honour.

***        GAVIN ALFRED GIRLING                                                                                                XXN MS FITZGERALD


They take control of Lake Mountain and then because they're not a lift operator, it falls out of the award?‑‑‑Your Honour, the two entities, the private entity prior to 2017 and the current Resort Management Board operate Mount Baw Baw and - - -


It operates Mount Baw Baw as well, I see?‑‑‑Correct, your Honour.


MS FITZGERALD:  But now, whoever's operating Lake Mountain doesn't operate a lift anywhere else, do they?‑‑‑My understanding is that the Southern Alpine Resort Management Board operate both entities.


At Mount Baw Baw as well?‑‑‑Mount Baw Baw and Lake Mountain.


But it's true to say that the Lake Mountain resort, if it were not being operated in conjunction with a different resort, that resort itself, doesn't have a lift or a magic carpet or a pommer, or anything that moves you to ski?‑‑‑That would be correct.  So, Lake Mountain as a resort in itself, has no lifting capacity, but is operated by a resort that has a lifting capacity.


That still considered a ski resort, because it does cross-country skiing.  Is that right?‑‑‑Well, I guess there's a number of parts to that question.  In terms of its membership of the ASAA, it's vicariously through that consolidated entity.  It would be like akin to one of our other operators operating another business that perhaps does not have a lifting link to it, but in its entirety, it is a lifting company, if that makes sense, your Honour.


The cross-country skiing, which is what's done there, doesn't require a ski lift, does it?‑‑‑It doesn't predominantly require ski lifting, that's correct.


You still need ski instructors to learn how to cross country ski, don't you?‑‑‑Like any genre of skiing or boarding, it's preferable to get lessons.  It's not compulsory, but it's certainly preferable.


At 2.3 of your statement you indicate that the Alpine Lifting companies are the owners and operators of the Alpine Resorts.  Then I think you tell us who those alpine lifting companies are in 2.4 from (a) through to (k).  In Victoria, the Victorian alpine lifting companies are not necessarily the owners and operators of the resorts, are they?  There's a split here.  They don't necessarily own the resorts here, do they?‑‑‑Again, in depends on the definition of what the alpine resort is, yes.

***        GAVIN ALFRED GIRLING                                                                                                XXN MS FITZGERALD


Yes, but do you understand that here, for example, a ski lifting company, the Mount Hotham Skiing Company, they have a 65 year lease from the Resort Management Board, don't they?‑‑‑Yes, they do.


It's probably correct to say that the alpine lifting companies are the owners or operators of the resorts, if you include the Victorian experience.  They don't own those resorts, do they?‑‑‑Again, it would depend on how you define the ownership of what is the resort.


VICE PRESIDENT HATCHER:  When you mean own the resort, what do you mean?  The land, the equipment or what?


MS FITZGERALD:  I suppose that's a question I should ask you.  What do you mean by they own the resort?‑‑‑I guess I was trying to ascertain what you were saying in terms of what the alpine - - -


VICE PRESIDENT HATCHER:  I was asking you to clarify your question.




VICE PRESIDENT HATCHER:  We know the land is owned by the Crown.


MS FITZGERALD:  Yes, in terms of the alpine resorts, in Victoria, the Resort Management Boards actually own significant parts of those resort areas, don't they?‑‑‑That's my understanding, but in New South Wales, similarly, leases are granted to the operators in the ski resorts.  We don't own the land, we lease and are given authority to operate within those national parks.


VICE PRESIDENT HATCHER:  If you don't know, say so, but Mount Hotham, the actual lifting equipment, who would actually own that equipment?‑‑‑Your Honour, I'm not quite sure in terms of what the Victorian experience would be. Quite often with ski resorts, and I'm using a very general term here, but quite often with ski resorts, when an asset is put in situ into a resort, whilst the lifting company operates that, it defers to the Crown at the end of the leasing term.  Now, I'm not quite sure whether that's the same in Victoria or not, but it certainly is in New South Wales.


MS FITZGERALD:  In your witness statement at paragraph 8 you have indicated that the Victorian Boards are very different from your members, but in fact, one of the Victorian Boards is a member of your association, isn't it?‑‑‑That's correct.

***        GAVIN ALFRED GIRLING                                                                                                XXN MS FITZGERALD


It's not true to say that they're very different entities from your members.  Some of them are your members?‑‑‑In that particular circumstance, that's correct.


If the Mount Hotham Resort Management Board - no, sorry, the Mount Hotham Skiing Company who operates the lifts on our mountain went bust and we stepped in to operate the lifts, on our mountain, you would let us become members of your association, wouldn't you?‑‑‑That would be my understanding; that would be aligned with what happened at Baw Baw.


Your witness statement talks about the lifting companies but it also uses this concept of the snow sports industry.  I want to suggest to you that the snow sports industry is broader than just the operation of lifts, isn't it?‑‑‑I think we've discussed that over the last week, that there is a broader snow sports industry.


I'm sorry, I haven't been here?‑‑‑Of course.


As long as it's accepted.  For example, operating a ski school is considered part of the snow sports industry?‑‑‑Well, in terms of that question, the snow sports operations is a specific classification covered under the Alpine Resorts Award, so yes.


Ski patrolling is an inherent part of the snow sports industry?‑‑‑Ski patrol is a classification covered under the award, that's correct.


I'm looking to your evidence rather than your legal expertise about what's covered under the award, because that's - so if we talk about what is an inherent - what you see in your experience as an operator, on the ground, as being a part of your industry, that ski schools and ski patrolling are inherent parts of the business that you're in?‑‑‑Well, they are inherent parts of the business in terms of if you're looking at Perisher or if you're looking at the overall industry.  At Perisher, they are a part of our operations, that's correct.


In terms of the seasonal nature of the industry that's been discussed by both you and by Mr Hutchins, it's true that some of your members have summer operations, isn't it?‑‑‑That would be correct.


All of your members have at least a small number of non-seasonal employees, don't they?‑‑‑To my understanding, that's correct.

***        GAVIN ALFRED GIRLING                                                                                                XXN MS FITZGERALD


VICE PRESIDENT HATCHER:  Mr Girling, in New South Wales, does - I'm not sure of its current name, but the National Parks Authority or whatever it's called these days.  Do they perform any functions at all within the boundaries of the ski resorts?‑‑‑They certainly provide the municipal services in a number of resorts.  Again, it depends on the leasing arrangements within those resorts, your Honour.


Which resorts would they provide municipal services?‑‑‑I can only talk to, in very detail about Perisher, but in Perisher they provide the services of garbage removal, water treatment, sewerage treatment, internal roads and so forth.  They are all undertaken by the New South Wales National Parks.


Do they clear roads?‑‑‑They have authority - again, it's internal roads, yes.  The main road would be under the auspice of - I can't remember what it calls itself this week, it seems to have changed so many times - DMR, RNS.


COMMISSIONER RIORDAN:  Services New South Wales?‑‑‑I couldn't quite work out if it was part of that now or not, your Honour.


Called Services New South Wales now?‑‑‑So, the main road is and they tend to contract that out to specialists.


MS FITZGERALD:  In your witness statement, you note that each member engages employees differently, am I right in saying that there's no uniformity of practice in your member group about how employees are engaged?‑‑‑That would be correct.  A number of resorts operate on the basis of a highly casual workforce.  At Perisher, as I've attested to, the high proportion are on a seasonal engagement.


At Perisher, 15 per cent of your workforce falls outside this particular award?‑‑‑That's correct.


None of your members would have full coverage under this award, would they?‑‑‑I couldn't answer that with absolute - I know at Perisher we have a number of staff like myself who are not covered by the award and covered by a common law contract.

***        GAVIN ALFRED GIRLING                                                                                                XXN MS FITZGERALD


I note in your statement at 8.4 of your witness statement that the Alpine Resort Management Boards are required to plan for the development, promotion, management and use of alpine resort areas in accordance with the ARM Act.  It's true to say that many of your members do these things for their resorts, it's just that they don't do it under the ARM Act?‑‑‑No, they do it for commercial benefit, that's correct.


The point you're making is that we do it under a bit of legislation; you do it for other reasons, but those functions are relatively similar to things that your members do?‑‑‑They would be diverse, but yes, they would have a nature of similarity to them, yes.


There are a number of statements made about the Board that Mr Hutchins has dealt with in his witness statement, and I will just step through them hopefully, relatively quickly.  The first - and Mr Hutchins is responding to things that you've said in your witness statement.  At 53 of his witness statement, you won't have this, but I'll read it.  He responds to what you have said in paragraph 3.2 and he says -


Poor weather conditions, the overall patronage of the resort, is impacted, therefore impacting on the revenue obtains from gate entry and other sources. I do not agree that visitors are simply channelled to non-lifting facilities in the resort.


Now, you can't dispute that evidence, insofar as his resort is concerned, can you, that visitors are not simply channelled to non-lifting facilities in the resort; it impacts everything, the poor weather conditions?‑‑‑I couldn't say categorically that doesn't occur at Hotham at times, no, I could not.


At paragraph 54 of his witness statement, he responds to 3.1.3 of your statement, discussing the summer operations of the lifting companies.  He makes the point that -


The Board's operations are also significantly different during summer as opposed to during the winter season.


You can't dispute that, can you?  You accept that activities undertaken by the Board will vary very significantly as between summer and winter?‑‑‑I can't dispute the statement of Mr Hutchins without a far better idea of his operations than I.


At 56, he responds to paragraph 4.1 of your statement and says the majority of his dealings with unions have also been with the Australian Workers Union and that would be right, wouldn't it?  You don't know any different from that, do you?‑‑‑I couldn't comment on that.

***        GAVIN ALFRED GIRLING                                                                                                XXN MS FITZGERALD


Then at paragraph 57, he responds to 8.3 of your statement which is a statement about how the Boards act on behalf of the Crown and all of the employees are public servants.  He says -


I deny that all employees of the Board are public servants.  The employees are public sector employees, but not public servants, on the basis that the Board is not a public service body, but a State Government Statutory Authority.


You can't contradict that, can you?‑‑‑As I say, my understanding is they're under the Victorian award pertaining to public service.  I wouldn't refer to those as a public servant, but perhaps the terminology is incorrect.


He replied to 8.8 of your statement which is about the percentage of employees who are employed during summer and winter.  He says -


Deny that the difference in employee numbers between the seasons is not as significant for the Board, I rely on paragraph 41.


His evidence there at 41, is that the Board is made up of about 25 full time staff who are employed all year round and the remaining 80 to 100 employees are only employed during the snow season.  That is an equally significant differential in employees; that's a lot of your members, isn't it?‑‑‑It would be close to - it wouldn't certainly be as high as say an entity like Perisher where less than 10 per cent of our staff are ongoing, but across all resorts, it would be probably at the higher end.


Particularly if some of them do manage to have some summer operations, those would have a higher annual workforce than you would at Perisher?‑‑‑Yes, the proportionality again, compared to the numbers that you've just outlined there, that would still be relatively high to the rest of our members.


I have no further questions, thank you.


VICE PRESIDENT HATCHER:  Any re-examination?


MR HARMER:  Very briefly, your Honour.

RE-EXAMINATION BY MR HARMER                                          [12.44 PM]

***        GAVIN ALFRED GIRLING                                                                                                       RXN MR HARMER


Mr Girling you were asked some questions about the Lake Mountain resort before?‑‑‑That's correct.


You had cause overnight to make enquiry through the ASAA about the status of that resort, correct?‑‑‑Yes, I did.


The information provided is, in effect, that the Mount Baw Baw private resort operator went broke in the early 2000's, correct?‑‑‑Belgravia Leisure, basically handed it back to the Crown; the Crown then operated it.


Since that time, the Crown has operated as an employer across both the Mount Baw Baw and the Lake Mountain resorts, correct?‑‑‑That's correct.


VICE PRESIDENT HATCHER:  What's Lake Mountain Pty Ltd referred to in 2.4(i) then?‑‑‑My understanding on that, your Honour, is those few entities, Mount Baw Baw Alpine Resort Management Board gave Belgravia Leisure a right to operate Baw Bar resort and then Belgravia Leisure also then operated Lake Mountain.  Now how they did that and in what sort of company construct, I take it from this, that they must have - that was the entity that Belgravia Leisure was operating, your Honour.  Prior to - well, my understanding is around 2016 they did that to and then in 2017, the combined Mount Baw Bar Lake Mountain which I've attested to before, the South Alpine Resort Management Board not only was the Resort Management Board, but also the operator for those two particular resorts.


MR HARMER:  The entity operating Lake Mountain has changed since you made your statement?‑‑‑That's correct, it has changed since my statement.


VICE PRESIDENT HATCHER:  Do you know who operates the Dinner Plains Alpine Village?‑‑‑My understanding, your Honour, in terms of the lifting there is Hotham Resort.


MS FITZGERALD:  I have some evidence from the Bar table.  My instructions are that it is the Mount Hotham Ski Company who operates the Dinner Plain.


MR HARMER:  Nothing further, thank you.


VICE PRESIDENT HATCHER:  Is that all the evidence in the matter?  Ms Fitzgerald?

***        GAVIN ALFRED GIRLING                                                                                                       RXN MR HARMER


MS FITZGERALD:  Yes, it is, your Honour.


MR HARMER:  Only if it would assist, your Honour, I thought I might hand up a copy of the Award if that's necessary.




MR HARMER:  Sorry, the Award current governing the Resort Management Board making the application, which is the State Government Agencies Award 2010, it's the modern award.


VICE PRESIDENT HATCHER:  That previous Award, did you locate that?  It's referred to in paragraph - - -


MR HARMER:  Yes, I apologise, your Honour, it's back in the hotel and we've run off just making copies.


VICE PRESIDENT HATCHER:  That's all right, but it's not annexed to the statement.


MR HARMER:  I apologise, it is not.


VICE PRESIDENT HATCHER:  All right, you can hand that up.  If we resume at 1.45 for closing submissions.


MR HARMER:  Yes, and again, only if it's for assistance, if we left a copy of the Alpine Resorts Management Act, Victorian legislation that governs these entities.  Again, only if it would assist the Tribunal.


VICE PRESIDENT HATCHER:  About half an hour each for your submissions?


MR HARMER:  Yes, I think I can be less than that.


VICE PRESIDENT HATCHER:  All right, we'll resume at 1.45.

<THE WITNESS WITHDREW                                                          [12.48 PM]

LUNCHEON ADJOURNMENT                                                         [12.48 PM]

***        GAVIN ALFRED GIRLING                                                                                                       RXN MR HARMER

RESUMED                                                                                               [1.51 PM]




MS FITZGERALD:  Thank you, your Honour.  The Mount Hotham Alpine Resort Management Board, makes the following submission with respect to its application to seek coverage. I'll make a number of oral submissions, but we do rely on our written submissions and we rely on the witness statement of John Hutchins, the Chief Executive Officer of the Board filed in this proceeding, and also on Mr Hutchins' evidence today.  We will also be relying on some of the evidence provided by Mr Girling in his evidence, in particular, the evidence in relation to the nature of the members of his association, to the extent that he knows whether they do or do not provide lifting services, for example.


VICE PRESIDENT HATCHER:  For your client, what do you say is the current award coverage?


MS FITZGERALD:  My client is currently covered by the State Government Agencies Administration Award 2010.


VICE PRESIDENT HATCHER:  But I thought there was a suggestion that some people might be award free.






MS FITZGERALD:  The award free employees, at the moment, are the mechanics, ski instructors and the general construction hand and labourer positions employed by the Board.  Neither fit within the classifications of the State Government Agencies Administration Award, nor any other award.


VICE PRESIDENT HATCHER:  Leaving aside ski instructors, why wouldn't the others, mechanics and general construction labourers fall under the relevant modern industry awards?


MS FITZGERALD:  My instructions are that the Board is not - under the industry awards, the Board doesn't have industry coverage.

***        GAVIN ALFRED GIRLING                                                                                                       RXN MR HARMER


VICE PRESIDENT HATCHER:  The Manufacturing and Associated Industries Award covers mechanical tradespersons and a wide range of industries and occupations.  Why wouldn't be covered by them?


MS FITZGERALD:  I might take that question on notice.  It's not - my instructions are that they most certainly aren't - they don't fit within the classifications obviously of the State Government Agencies Administration Award.


I'd like to make some submissions about the variation that is sought, and to confirm that the variation the Board is seeking is a very confined variation which simply increases the coverage of the award, to effectively the Victorian Boards that are managing these resorts.  The Board is of the view that the award is the most appropriate for the environment that the Board's employees operate within.  You've heard evidence that the Board's current enterprise agreement was matched against this award as well as the State Government Agencies Administration Award for the purposes of the BOOT.


Mr Hutchins' evidence was that the above clause - his evidence in his witness statement was that that clause was added to the Board's enterprise agreement, the clause specifying that the BOOT was done on the Alpine Award in recognition that it was appropriate that its employees' terms and conditions were at least as favourable as the terms and conditions of workers employed by the Mount Hotham Ski Company who do similar work.


Mr Hutchins' evidence was most certainly not that this award coverage is needed to save the Board money and is most certainly not pursued for that reason.  His evidence was that it's being pursued because the award is, put fairly simply, a better fit for the operation that the Board conducts than the State Government Agencies Administration Award.


VICE PRESIDENT HATCHER:  What's the relevance of that in circumstances where it has enterprise agreements, which on the evidence, are perfectly satisfactory for its operations?


MS FITZGERALD:  The Board seeks to be covered by the award so that primarily, in its next round of enterprise agreement negotiating it can apply the BOOT in a simple manner against a single award that it considers appropriate, rather than having to juggle those two contradictory awards.


VICE PRESIDENT HATCHER:  What are the two contradictory awards?‑‑‑


MS FITZGERALD:  The State Government Agencies Administration Award which is the award that it must apply the BOOT test against, the award that applies to it, and its self-inflicted BOOT under this award.  It has done the better off overall test on the basis of this award and the State Government Agencies Administration Award.




MS FITZGERALD:  Because the evidence is that a number of its employees switch between the Ski Company and this company and they would like to ensure that they can have a seamless transition in terms of the conditions that apply to them.


VICE PRESIDENT HATCHER:  But they're governed by the enterprise agreement, that is the only purpose of the award is to service as a comparator for the reference for the BOOT, but beyond that, the enterprise agreement deals with all these issues, doesn't it?


MS FITZGERALD:  Yes, that's right.


VICE PRESIDENT HATCHER:  I mean we haven't - well we've been given a copy of that award, I think, but we haven't compared it.  I mean, is the point that you'll get - you can negotiate an agreement that's inferior to the current one because the BOOT gets lowered by changing awards, is that the point of this?


MS FITZGERALD:  The point is that they'll only need to do the BOOT against this award instead of the more complex arrangement of doing it under two awards.


VICE PRESIDENT HATCHER:  But why do they have to do it under two?


MS FITZGERALD:  Because the State Government Agencies Administration Award applies to them.


VICE PRESIDENT HATCHER:  Yes.  Why do they have to do it under an award other than the State Government Agencies Administration Award.  That's what I'm asking you.  That is, where does this thing about having a second award for the BOOT come from?


MS FITZGERALD:  My instructions are that for a long time, the AWU were of the view that we were covered by this award, and took the position that we should comply with this award.  As a result of those negotiations, we did ensure that our enterprise agreement was at least as favourable as the conditions under the Alpine Award.


VICE PRESIDENT HATCHER:  That's not too hard.  Why would we change award coverage because the AWU takes a view about it which is plainly wrong?


MS FITZGERALD:  The why you would cover the award, is that this award is the most appropriate award for this entity.  That it makes no sense to have a Board of this kind not covered when it performs a huge chunk of functions that are performed by those who are covered.  In my submission the reason that the Board was not covered, it is really an accident of history.  It wasn't a party to the award modernisation process that took place in 2009 and in our view, that process should not forever bind or preclude the Board from seeking to be included in the coverage of the award because of that historical accident.


If one looks at the discussion about the inclusion or the coverage clause that's been provided in the Association's materials, in the original award modernisation process, but also in the Falls Creek over snow, and DPSI applications.  Our view is that one would primarily consider the Board's current application and supporting evidence and not be bound by those historical mattes, simply because none of the Boards were there to provide accurate information about the industry that they operate in.


One can see that at those times, the Commission was interested in how the industry operated and some incorrect information has been provided in that process, about how the resorts operate, in particular, in Victoria, for example, in the transcript material that the Association has provided.  See attachment Z of Mr Girling's statement.




MS FITZGERALD:  The transcript of proceedings for the award modernisation proceedings, if I can take the Commission to PN3688 which is in attachment Z and it's about a half a centimetre in, half way through that attachment.  This is to dispel any suggestion that the Boards were intentionally excluded, and in my submission, there was a misunderstanding about how the resorts operate in Victoria at that time, which has not ever been corrected.


At PN3688, Justice (indistinct) says -


Yes Mr Harmer, I was particularly interested in the definition and the submission that was made about the requirement that the resort include alpine lifting.  The suggestion seemed to have been made that there would be other resorts that don't include alpine lifting which would be covered by other awards and that was the issue that I was interested in your submission on.


Mr Harmer says -


In our respectful submission, your Honour, there would be no alpine resorts involved in the ski industry as we understand that does not involve ski lifts.


And that may well have been true at that time, I'm not sure, but in my submission, what was being put to the Commission was, when we say, pin coverage to alpine lifting, we actually are pinning coverage to all resort operators which was the Commission's intention.  Now, we operate a resort, we manage a resort, we don't operate an alpine lift, and in our submission, the coverage of the award should not turn upon that one fickle aspect of the business.  There may well be many alpine resorts - or there are other alpine resorts for example, Lake Mountain, that don't have an alpine lift, where all of the rationale for this bespoke award applying, apply equally to those and the definition ought not turn upon the operation of an alpine lift.


VICE PRESIDENT HATCHER:  But it didn't start with the award modernisation preceding state-based awards which also have the same restriction.


MS FITZGERALD:  That was at a time when these Boards had their own specific alpine Board-specific award as well, which is the Victorian - - -


VICE PRESIDENT HATCHER:  We still haven't seen.


MS FITZGERALD:  Yes, and I'll have my instructor provide a copy of the Victorian Alpine Resorts Award.  Mr Harmer - - -


MR HARMER:  I apologise we left it in the hotel.


DEPUTY PRESIDENT DEAN:  Ms Fitzgerald, just remind me what happened to this award?


MS FITZGERALD:  This award was discontinued in 2012 and from that point onwards the Board has been covered by the State Government Agencies Administration Award.




VICE PRESIDENT HATCHER:  That all happened without the Boards doing anything about it or making any application?


MS FITZGERALD:  Yes, Vice President.


VICE PRESIDENT HATCHER:  I'm just looking at it, apart from various types of construction, it has classification for ski patrol functions.


MS FITZGERALD:  Yes, that's right.  Ski patrol assistance, plougher.


VICE PRESIDENT HATCHER:  Is there a classification for that under the State Government Award?‑‑‑


MS FITZGERALD:  No, my instructions are that there is no specific ski patrol or classification under the State Government Award.


DEPUTY PRESIDENT DEAN:  Ms Fitzgerald, it may be that you're going to deal with this in your submissions, but at some point, I'm interested in your views on the AWU's submissions from paragraph 47 to 50, the submissions that were filed on 31 July 2017.


MS FITZGERALD:  That was paragraphs?




MS FITZGERALD:  Thank you for that Deputy President.  I'm happy to touch upon it now.  As you can see from the submissions that I was just making earlier, it's the Board's submission that there was no - the exclusion of the Boards was not an intentional decision and to the extent that the AWU's submission indicates that that quote from the statement suggests that there was a decision not to make special provision in relation to alpine resort management Boards, it's our submission that the Commission was under the misapprehension that all resort operators, would - all of those who operated resorts would also operate lifting companies.


To that extent, we adopt the AWU's submission here, that quoting the Falls Creek Resort Management's decision, that it's not a decision to exclude the Resort Management Boards from the coverage of the modern award.  That the intention was to create a comprehensive award and that the Commission were misdirected about how to do that.  They thought that having the hook being the lifting company was a way to create a comprehensive award, because they were misinformed that all resorts did operate lifts.


As it turns out factually, that is not the appropriate way to create a comprehensive award, because ski resorts and snow resorts don't all have to have lifts.  They can be cross-country resorts and they can involve snow play and tobogganing and all of these other things.  The lifting is not an appropriate hook, in our submission.  The Commission thought it was going to be a comprehensive hook, and in my submission, they intended it to be a comprehensive award for operators and managers of resorts.


VICE PRESIDENT HATCHER:  I'm sorry, reading from the quotes, the decision of Commission Roe in relation to Falls Creek Resort Management Board, if I've read the quoted passage correctly, it would seem to indicate that he thought that the Alpine Award already covered them.




VICE PRESIDENT HATCHER:  Is that the way we are to read that decision?


MS FITZGERALD:  Is that Commissioner Roe quote?  Yes.


VICE PRESIDENT HATCHER:  Is that the gist of the decision?


MS FITZGERALD:  And my understanding is that for a long time the AWU did take the position that - - -


VICE PRESIDENT HATCHER:  Not the AWU - was that the decision of Commissioner Roe - are we to read the decision as saying that the Alpine Resorts Award applied to Falls Creek Resort Management Board?


MS FITZGERALD:  Yes.  My friend's helpfully pointing out there is more to the decision that may affect that.  The AWU's submission goes on to quote a further part of the Commissioner's decision at paragraph 56 of the AWU's submissions.


VICE PRESIDENT HATCHER:  If you look at paragraph 55, 56 and the quoted passage, the Commissioner says that


He's satisfied that if the applicant is a trading corporation, then the outdoor workforce is covered by the Alpine Resorts Award.




VICE PRESIDENT HATCHER:  That's Falls Creek and I think it's been said somewhere in your submissions, that at least in relation to your client, it regards itself as being a trading corporation.


MS FITZGERALD:  It does, it does.


VICE PRESIDENT HATCHER:  The Board is an incorporated entity, is it?


MS FITZGERALD:  It is not an incorporated entity; it is created by statute.


VICE PRESIDENT HATCHER:  But is it a statutory corporation?


MS FITZGERALD:  I understand that we have made some submissions about why we are a trading corporation.  My understanding is that we are not incorporated.


VICE PRESIDENT HATCHER:  Well, how can you be a trading corporation?


MS FITZGERALD:  Yes, I am having difficulty reconciling that on my feet.


VICE PRESIDENT HATCHER:  Leave that aside problem.  The Commissioner said he was satisfied that if Falls Creek was a trading corporation, then its outdoor work force was covered by the Alpine Resorts Award.


MS FITZGERALD:  Yes, at that time.




MS FITZGERALD:  Well, I mean this is - - -


VICE PRESIDENT HATCHER:  That's after the award was made.  I don't know what would have changed to invalidate the conclusion.


MS FITZGERALD:  Yes, so it was in 2010, yes.


VICE PRESIDENT HATCHER:  As the Commissioner goes on to say in paragraph 56, if they're not a trading corporation they're excluded because it doesn't cover persons covered by a state reference public sector modern award.  Does that have any relevance to your client?


MS FITZGERALD:  The Board's position is that the award that covers it is the State Government Agencies Administration Award.


COMMISSIONER RIORDAN:  Why wouldn't the tradesmen and general field workers be covered by the general field worker classifications in the State Government Agencies Administration Award?  It quite specifically indicates that a trade certificate is required for a level 3 field worker.


MS FITZGERALD:  I'll take that question on notice.  I'll just get some instructions about what those people do, but it's accepted that that award applies, and so if there is an appropriate classification for those employees.


COMMISSIONER RIORDAN:  An AQF3 is an AQF3; it doesn't matter what industry it's in and these mechanical tradespersons, are AQF3 qualified people.  So, that fits into that classification under that award.  Likewise, the labouring classifications would fit into the lower levels of that classification structure.  That leaves you with one classification which is outside the award as you would suggest, and that is of ski instructor.




MS FITZGERALD:  Snow patrols.


COMMISSIONER RIORDAN:  I think snow patrol can be covered.  All these classifications of course, that we've got, have been rated as either AQF levels of the equivalent to an AQF level.  I think under the Alpine Award for ski instructors is called the APSI.  I'm not sure what an APSI is, but each classification in Australian is being assessed so they can be matched across industries and across classifications.  That classification will fit somewhere in the AQF band.  Then it's simply a matter of applying it to the award.


This State Government Agencies Administration Award has a plethora of classifications including technical officer and professional officer classifications.  Now, if you look at the regional Victorian award, if also has a multitude of classifications, so I just don't think the argument that well, we can find a classification under the Alpine Award, therefore it's got to be the Alpine Award applies, is not necessarily relevant.


MS FITZGERALD:  I accept that.  The argument though is not that.  The argument is that by reason of its functions and activities, it is operating and managing an alpine resort, regardless of whether it operates a lifting facility and that it ought be covered by this award simply for reasons of logic, that this is an industry specific award.  The Board and other Boards in Victoria operate and manage alpine resorts, even though they don't operate lifts and so it isn't simply this has some classifications that we like and there's nowhere else for us to go.  It is that this is an industry award which should apply consistently to the industry, to this very confined industry and we say we are very much a part of that very confined industry.


COMMISSIONER RIORDAN:  Does the Victorian Government have a view on that?


MS FITZGERALD:  It may, but I don't know what that view is.  We say that we manage alpine resort infrastructure and while we don't operate a ski lift that we're responsible for and we conduct many activities that are related to alpine lifting.  We also say we conduct a snow sport activity in the form of an indoor ski field which involves a significant piece of specialised machinery.  Not dissimilar to a magic carpet which is as discussed - is within the definition of ski lift in the Victorian legislation.


The Board runs bus services that replace ski lifts when those ski lifts cannot operate due to high winds.  Yes, we employ a small number of ski instructors to work in our ski field, but we also employ a more significant number of ski patrollers, so our employees work on the snow.


VICE PRESIDENT HATCHER:  I've just noticed that section 34(7) of the Alpine Resorts Management Act 1997 says each Board is a body corporate with perpetual succession.


MS FITZGERALD:  You've figured out - thank you.  You know more about my client than I do, I'm embarrassed to say.  As the evidence of Mr Hutchins has indicated, the Board is directly impacted by the high level of variability of snow and weather in the same manner that the other participants in this industry are.  We undertake significant capital expenditure to capital works projects that directly benefit alpine lifting and the members of the association - or the particular member that we have a relationship with.


We undertake a broad range of activities under the Act, but all of those activities are aimed at ensuring the consistent and reliable delivery of core services to maintain the daily operation and viability of the resort and to provide the foundation on which the lifting company can operate its business.  It's the Board's submission that given these functions and the activities, it's unequivocal that despite not operating a lift, the Board is operating an alpine resort.  It manages that resort and operates parts of it itself, directly.


On this basis, the Board's submission is that precluding it from coverage under the Award for the sole reason that it does not operate an alpine lift is illogical.  It puts it in a position where some of the employees that regularly transfer between employment and employment with the lifting company, at some point may be accepting that the enterprise agreement currently applies, and at some point may be subject to different entitlements.


As the evidence showed, there's another member of the Association who it refers to as an alpine lifting company that's similar to the Board.  The Mount Baw Baw Board is established under the same legislation, and it has taken over lifting services at Mount Baw Baw.  The Board might be in a position where - I mean it's very unlikely, but the Board, if it had to at Mount Hotham, it may do that itself.  The evidence was that some of the Association's members don't operate lifts and our submission is that a ski lift is not essential for an alpine resort.


The mere existence of one particular piece of infrastructure that's often found in a ski resort, should not be determinative of whether a business is considered to be an alpine resort.  Clearly, the mere fact of lift operation not ought be determinative of award coverage under this industry award and in our submission, the mere fact of lift operation should be removed from the coverage clause.


The Board also says that it has in fact, responsibility for a number of alpine lifting or services that are integral to alpine lifting.  That is because we're an appointed committee of management under the Crown Land Reserves Act for the management of the Crown land which makes up the Mount Hotham Alpine Resort.  That gives us the power to grant leases for the purposes of providing facilities and service for the public.  In accordance with this power, we issue leases to various commercial on the resort.  But under the Act, we retain ultimate responsibility for all of those activities.


As Mr Hutchins provided evidence, it is through a lease with the Mount Hotham Skiing Company that that company operates the ski lifts, and under that lease with the Board, if the skiing company fails to meet its obligations under the lease the Board either has to find an alternative operator or operate the ski lift itself.  Obviously, at that point the award would then have coverage because of the only thing that is precluding award coverage in this case, is whether or not the Board operates a ski lift.


As Mr Hutchins' evidence indicated, there are a large number of functions that the Board performs in relation to the use of the ski slopes and ensuring public safety.  In particular, the functions of ski patrol, opening and closing slopes and trails, marking hazards, erecting ski boundary fences, policing ski slopes, provision of first aid, search and rescue.  While the Board doesn't have the power over the ski lifts, to close the ski lifts, the Board most definitely has the capacity to close the ski run.  Therefore, its core functions relate to the operation of the resort itself, and not just a small retail part of a resort; it's the operation and management of the resort.


Mr Hutchins has provided evidence that whilst the ski company performs snow grooming for the ski areas near the lifts, the Board undertakes snow grooming for approximately 100 kilometres of cross-country trails in the Mount Hotham Alpine Resort.  We provide snow making on the non-run areas.  We also provide snow making in the snow play areas of the resort.  It's the Board, not the ski company who organise and contract with operators of those snow play facilities.  It's clear there are significant areas of the resort that the ski company doesn't manage and doesn't directly operate itself and that that work is done by the Board.


In summary, despite not operating a ski lift, we retain responsibility for the operation of those lifts under the Act.  More importantly, in relation to a number of areas of the operation of the resort, the Board has what can be best described as a symbiotic relationship with the skiing company in which pro bono, free services are provided to the skiing company because both the resort and the skiing company are working towards the same objective.


In our submission, there is a real issue of logic about why two employees, one employed by the skiing company and the other by the resort who are working side by side in these very similar functions, should not both be covered by the same award.


The Ski Areas Association has made a number of submissions about the unique nature of the snow sports industry and those features being reasons why the Award should cover the Association's members.  We say that all of those reason support coverage of the Victorian Boards and in particular the Mount Hotham Board.  The Board submits that the factors that the Association say make the snow sports industry unique equally apply to the Board and those Mr Hutchins' witness statement sets those out at paragraph 26 through to 34 of his witness statement.


The Commission has heard a lot about those, I am sure, those features over the last few days.  The variability of the snow season, the variable conditions, the impact on revenues.  Just like the skiing companies and the lifting companies, if there are poor snow conditions, it has a direct impact on the Board's resort entry, which is 30 per cent of its yearly revenue.  It also has a direct impact on other income sources.  The 15 per cent revenue from leases and the 10 per cent revenue from gas are also impacted by poor snow conditions and snow conditions in past year.  In my submission, when one looks at Mr Hutchins' witness statement, one can see that 55 per cent of the Board's yearly revenue is highly weather dependent. The submission there is, the fact that it is similarly impacted by the snow and weather variability as the lifting companies, supports coverage.


The Association also makes a number of submissions about capital expenditure.  Now, the evidence provided by Mr Girling is that he wasn't able to provide evidence about who owns the lifting infrastructure in relation to all of his members, and so, it's not possible for the Association to make a submission that it is the alpine lifting companies who have to shell out for those lifting facilities, because the arrangements do vary.  In my submission, there's no evidence who owns those lifts in terms of his membership.  But the Board's evidence is that does undertake significant capital expenditure and it has, as Mr Hutchins deposed, recently invested in an in-door ski field at Wire Plain, which has involved a significant capital investment.


The final feature that the Association relies upon to distinguish itself for why its members and its members only should have coverage under the award, is the highly seasonal nature of the Association's members workforce.  Mr Girling accepted that the proportion of the Board's permanent to seasonal workforce employee was the same as some of his members, but I think his evidence was that it was - or similar to some of his members, but it was definitely at the highest end.  In my submission, if one looks at the numbers provided in Mr Girling's statement, the Board employs around 25 full time staff year round, and there's an additional 80 to 100 more employees that are employed during the winter snow season and its workforce is not only seasonal, like the Association's members, it's also specialised and specific to the hazardous snow environment in which they operate.


The Board's position is fundamentally that the award is the most appropriate award for it, given the nature of the work it undertakes.  And given that it undertakes a large proportion of the work that the Association's members undertake in New South Wales, so that whilst in New South Wales the resorts may operate and manage.  In Victoria, because of the legislative conditions, there is a distinction between the operation and management of these resorts and there's simply no reason in logic why, when those two functions are split out, the two different organisations that are performing those two functions, should not both have coverage under the award.


I'll just make a brief submission in relation to the evidence so it's clear the position that the Board took in relation to Mr Girling's evidence.  There was an objection made to large parts of, in particular, paragraph 8 and I've heard what the Commission's ruling on that is.  We would note that the objection was on the basis that a large amount of that material is either submission or hearsay or expert evidence about which Mr Girling simply didn't have any expertise to provide evidence on, particularly in relation to global warming.


We would simply note that care needs to be taken with the contents of that material and that a large amount of it is simply submission.  Equally, I would also point out in relation to the evidence given by Mr Hutchins, that Mr Hutchins is not a lawyer and that in relation to the cross-examination of Mr Hutchins, as to the enterprise agreement or the application of the BOOT and such like by Mr Harmer, Mr Hutchins made it quite clear that that is not his area of expertise and Mr Hutchins was put on in order to provide evidence about the operations of his business and not about the operation of the law.  To that extent, my submission is that it's quite understandable that he hasn't done that comparison himself.


Those are the submissions of the Board.


VICE PRESIDENT HATCHER:  Thank you.  Mr Harmer?


MR HARMER:  Thank you, your Honour.


Your Honour, again, the test briefly is the same as in the other matter, evaluated judgment, having regard to section 134(1) to determine in all the circumstances and having regard to all the probative material, what is the relevant safety net, not only for this employer, but also employees that are not before the Tribunal.


VICE PRESIDENT HATCHER:  For ski instructors and snow patrollers who work for an entity that doesn't operate a lift, is there any relevant modern award?


MR HARMER:  We say the award they're under, covers them and I'll come to that shortly in dealing with a reply to what's being put.  But in essence - - -


VICE PRESIDENT HATCHER:  Just that - I'm not necessarily talking about this employer, as a general proposition, if you're a ski instructor or a snow patrol person and your employer is not covered by - if it is not a lift operator, is there any modern award that covers you?


MR HARMER:  We say the award that this RMB is under has classifications that would cover that work.


VICE PRESIDENT HATCHER:  If you're a resort management board?


MR HARMER:  That's correct.




MR HARMER:  Well, certainly a government agency under this award, the classifications we say are broad enough and have - - -


VICE PRESIDENT HATCHER:  Yes, but otherwise, if you're not operated by a Resort Management Board is there any relevant award?


MR HARMER:  Not that I'm aware of, no.


VICE PRESIDENT HATCHER:  For example, we've got the anomaly that Lakes Mountain doesn't have a lift but it only comes under the award, because it happens to be operated by someone who has a lift elsewhere.




VICE PRESIDENT HATCHER:  If that wasn't the case, what award would cover the work?  And perhaps alternatively, why should Lakes Mountain be in the award just by the pure chance that its operator owns a lift somewhere else?


MR HARMER:  The argument there would be if the Southern Region Management Board is operating an integrated business across the two snow operations, one being the ski lift basin, the other one being cross-country, that there is never a single entity within the award.


VICE PRESIDENT HATCHER:  Who says it's integrated?


MR HARMER:  That was one of the things I put to Mr Girling, I appreciate the evidence is not strong, but that's how I understand, but I can't put it any higher than that.  In response to your question, your Honour, if that wasn't the case, I'm not aware of where else the employees would be covered to the extent they're ski instructors et cetera.




MR HARMER:  Sorry, your Honour, and I'll come back to the issue of coverage just in reply.  The second point I briefly make is that as with the other coverage application, this matter does again require cogent reasons within the meaning of the jurisdictional issues decision at paragraph 27 and I say that, because this very issue was dealt by the Full Bench, the seven member Full Bench in 2009.  I think you've already been taken at least to a quote from the decision which is at tab Y of the affidavit of Mr Girling.  I can take the members back to it, but I think we say it yesterday and again today, so perhaps won't go to that in the interests of time.


But what I would go to is annexure R to the submissions that were put forward by the Association on 21 December 2016.  We annexe to that, all of the submissions from the 2009 review and just briefly, Annexure R is a submission by the AWU to the process and at paragraphs 11 and 12 the AWU commends to the Full Bench doing the review that there should be added to the exposure draft of the award, a complete amendment which would put, in effect, a schedule or separate part covering these resort management boards.  You'll see at that tab that attached to it is a revised exposure draft marked up by the AWU and at part 7, it's got almost an entire award, which picks up the old 1999 award, the Federal award applying to these entities and attempted to make it a schedule to what is now the Alpine Resorts Award.


The very issue of these resort management boards has been covered.  Was it before the Full Bench; was considered and was rejected.  Again, unfortunately, the reasoning is not clear because it was just a line saying we've decided not to do that and the result was there was a transitional period and these employees fell back into the general - - -


VICE PRESIDENT HATCHER:  Where is the line you refer to?


MR HARMER:  The decision?




MR HARMER:  Yes, that was annexure Y to the affidavit of Mr Girling at paragraph 222.




MR HARMER:  Paragraph 222 at annexure Y to the affidavit of Mr Girling.  Whilst it's only a sentence, it's a response to this specific submission and draft, and it's quite an extensive draft insertion applying to these resort management boards and the decision was not to do that.  Now, unfortunately there's obviously no great elaboration on why.


VICE PRESIDENT HATCHER:  It says we've decided not to make any special provision for them.  It doesn't say we've decided not to include them.


MR HARMER:  Yes, and your Honour, then the history is that of course, the exposure draft wasn't changed to take up this specific amendment sought by the AWU and the ski lift operator restriction continued.  So, it would be our respectful submission that the very strong attempt by the AWU and it did make a number of submissions about it, to cover the Resort Management Boards, and was rejected and the face of the award and the history demonstrates that that was the case.


We do say that it is another matter where one would be now moving against the grain of that decision by that Full Bench.  Again, I can't put that very highly because it's not apparent why it was done and it's certainly open to the Tribunal to do it, but based on - - -


VICE PRESIDENT HATCHER:  Why does it matter to your clients whether these Boards are included in the award or not?


MR HARMER:  I was going to come to that, your Honour, if I can in due course.  I'll just develop a couple of other points perhaps, and I'll certainly come to that if I may.  The third point I make is that the Tribunal only has before it again, one Resort Management Board.  Now, if you look at the legislation at section 18, there is an Alpine Resorts Coordinating Council.


Its role is to coordinate the conduct of these Resort Management Boards in the achievement plans and call it actions, designed to secure the objectives of the Act, specifically in relation to the alpine areas and you do not have before you a state government.  You do not have before you the specific entity charged with coordinating the activities of all these Resort Management Boards.  You've only got one Resort Management Board; they others have not turned up to say anything at all.  And again, we say in terms of the weight behind the application - and again, this is in no way determinative of their standing, but there's not great weight when you've only got one of a group turning up and the others can't be heard from at all.


The fourth point we make is that there is existing award coverage.  I'll come back to the classification issue, but outside of that point, and only just a material point, there seems to be no problem identified with the existing safety net in relation to this particular employer.


Point five is that the Tribunal has been provided with no specific comparison between the two awards.  There has been no attempt to show any degree of positives or negatives on the employer side, or any degree of positive and negatives on the employee side.  It just seems to be a matter of what's a better fit for the employer.


The sixth point is that a number of the employees appear on the evidence and through cross, to be long-standing public-sector employees.  There's no evidence of what will be the impact on their career path, if they're taken outside this particular - into this private sector award.


VICE PRESIDENT HATCHER:  What evidence are you referring to now?


MR HARMER:  I put - well, first of all, the evidence around the long history of these Resort Management Boards regulating this area and the fact that it's been a Victorian State Public Sector operation for many many years, and I put the questions to Mr Hutchins, to that effect and the notion that there were long standing employees who've been engaged in this operation for many years.  I'm inferring, your Honour, that they have a public sector career path; they've certainly got a long public sector history.


VICE PRESIDENT HATCHER:  I thought he rejected that.


MR HARMER:  That wasn't my understanding.  I acknowledge he didn't go with everything I put but I certainly understood that there were some long standing employees in this organisation which has always been public sector oriented and its predecessor.


VICE PRESIDENT HATCHER:  The notion that there's a public sector career path, where does that come from?


MR HARMER:  I think there was an acknowledgement that there is a number of benefits that are public sector based, not under the award necessarily, but within state legislation.  The person who made that point - - -




MR HARMER:  I didn't get the specifics, and your Honour, I'm - - -


VICE PRESIDENT HATCHER:  All I heard was that the public sector guidelines of something by.


MR HARMER:  You may well be right, your Honour.  Again, look, I just put it this way.  We've got evidence that we're dealing with people who have been engaged within the public sector in Victoria for a long period of time and if we put it the other way, there's no evidence that there will not be disruption to what has been their public sector history of engagement and their career path.


Point seven, in terms of the lack of a comparison.  Perhaps I'll leave the detail list to the SDA, but in very brief terms, the 1999 Award you've been provided, had weekend penalties by way of - I've got one example, the 2010 Award has overtime penalties that apply on weekends and I think Mr Hutchins did acknowledge that overtime was an issue and as I understand it, if one was to work through the week and then work on a weekend there would be overtime penalties applicable.  So, there's certainly some differences for the employees and for the employer, but none of that has been elaborated upon in this application.


The next point I'd make is, as came out of cross-examination, at least so far as we can ascertain, there's been no consultation with staff or at least there's been no evidence of it.  There's no evidence of employee views at all.  There's alleged confusion about which award applies, but that's actually arisen through this employer and the AWU actively supporting the Alpine Resorts Award as an underpinning for the BOOT test in their enterprise agreement.  If there's any confusion, they've introduced it themselves.


The next point we'd make is that the functions of this entity are more akin to a local council.  If you look at the statute and also the annual report that we've included at annexure DD to Mr Girling's affidavit, you'll see that they have a large range of environmental sustainability roles in the alpine region, which you can understand is quite critical work and its major work.  This particular entity would have many field workers and many operatives working outside.  You'll see in the annual report they conduct an entire alpine nursery, they deal with the whole issue of sustainability of flora, fauna.  In the alpine region, they would have many operatives working out in the snow who fall under field worker classifications in this particular state government award.


VICE PRESIDENT HATCHER:  Does that mean they're more the analogue of National Parks in New South Wales?


MR HARMER:  That would be our view that whereas in New South Wales, it's under National Parks, here it's just been delegated to a series of statutory corporations with smaller council-like operations.  As I examined with Mr Hutchins, for example, Dinner Plain falls under a Shire Council which would manage all the way up to the border of this Resort Management Board and does many of the same functions, as a local council in terms of clearing snow, dealing with flora, fauna and other arrangements in the snow.


It obviously lacks the ski lifting component and is more analogous to a local council, performing this specific regional function because of the importance of the alpine region, particularly for environmental purposes.


The next point, and this is an important one if you'll bear with me.  I appreciate there's been some difficulty with award coverage here, because the previous award, the 1999 Award did transition out.  This entity did fall back onto a state award, which arguably is not appropriate and I don't cavil with that; I'm not in a position to do so.  But when I say that, it's arguably not tailored and that's been redressed by enterprise bargaining, no doubt, because it's a low base and they tail it on top.


But a question that came from the Bench was, did you RMB - Mount Hotham Resort Management Board make an application when that was happening, to try and avoid falling off that old tailored award into a general state public sector award.  The answer was no, but the real answer is actually yes.  The answer is found at annexure FF, to Mr Gavin Girling's statement.  That is an application in I think it's late 2013, by the Mount Hotham Resort Management Board, so the exact entity that is before the Tribunal now, make an application in late 2013 at FF here.  The purpose of that application, if you look at the second page of FF, under the heading 2, Order or Relief Sought, was to seek a state reference - sorry, to seek the creation of a state public sector modern enterprise award to overcome the problem of falling off the edge of their existing award, which you'll see at point 4, was due to be automatically terminated, or it was proposed, on the making of a new award.


VICE PRESIDENT HATCHER:  That turned out not to be viable because they were a trading corporation, wasn't it?


MR HARMER:  Well, yes, and what I more wanted to go to, was what they put forward at that time in relation to our award, the Alpine Resorts Award.  I don't, again, make any point around the failure of this application.  What's important is at point five, none of the other Alpine Resort Management Boards support it.  What they were doing, and again, I don't make much other of that other than it seems to be consistent with this application.


But over the page, at the bottom of the next page, there's a heading Why Not the Alpine Resorts Award 2009?  Now, clearly in context, they're talking about the Alpine Resorts Award 2010.  You'll see back at point four on the preceding page up at the heading Relevant Industrial Instruments, and they list the Alpine Resorts Award 2010, but when we get over here, they're saying it's 2009.  But you'll see in context they're say -


Since the Fair Work Act was introduced in 2009 and modern awards were created, in particular the Alpine Resorts Award 2009 (I think they mean 2010), the Resort Management Boards in Victoria have had a problem aligning their staff with the staff of the private ski companies for whom the Alpine Resorts Award was created.


At this point in time they're saying it's not a good fit.  They can't align with the private operators' award, which was the Alpine Resorts Award.  The is late 2013.  Now, they then have an attachment one, which properly quotes from Commissioner Roe's decision, that you were taken to, and it quotes again from the alleged confusion through the exchange between Justice Giudice and myself at the time.  But if you go to the last page of attachment one, when it stops quoting Commissioner Roe, you'll see that the first submission made by this Resort Management Board is that -


We submit that the Commissioner was in error in finding that the ski lifts operate under a contract controlled by the applicant.


Then the next paragraph.


On this basis, we submit the Mount Hotham RMB is excluded from the coverage of the Alpine Modern Award 2010.


I think they mean the one we're under.  Next paragraph.


We submit that the State Reference Public Sector Modern Award is an even worse fit for the staff of Mount Hotham RMB.


Then down the bottom of the page -


We submit that the Alpine Resorts Award 2010 will need a substantial revision to provide a better fit for the RMB staff and we're currently looking - - -


VICE PRESIDENT HATCHER:  I just can't see that.  Which paragraph is it?


MR HARMER:  Sorry, right down - the last paragraph on that page.




Substantial revision to provide a better fit for RMB staff and we are currently looking at ways to do that in conjunction with the AWU.


MR HARMER:  We would submit they obviously found a way through enterprise bargaining and that's a good avenue, but at this point in time they're not saying it's such a great fit.  Now they're saying, hey, we want to fit into this award.  Now, if that was the case, it seems, based on what they were saying at that time, that there would need to be substantial revision to this award, and that's one of the reasons why we oppose what they're doing, which I'll come to, but I just wanted to provide that context.


VICE PRESIDENT HATCHER:  The decision of Commissioner Roe, I mean, it may be we don't know what Falls Creek are doing, but they found the belief after that, that they're covered by the Alpine Resorts Award and that's why they're not here.


MR HARMER:  Look, it could be, your Honour, and I think that's a valid point.  Again, with great respect to Commissioner Roe, and it was in a sense, dicta because he found they weren't a statutory corporation I think, at the time, so he was just saying I don't need for purposes of the BOOT test to do other than just have regard to these two awards and so he didn't make a solid finding.  Not that the Tribunal could of course, but he took a view so to as inform his assessment of the BOOT.  But we'd say with great respect, it's wrong and I'll come back to that briefly.


But look, in terms of - the next point is that there is obviously an enterprise agreement in place that is serving the need.  The apprehension that we have is similar to the other matter.  The expansion of our award, because of its conditions, does create a threat.  Obviously, the SDA is here and is going to oppose it as we understand it and again, there could be repercussions with the stability of our award.


The other point we make is, that given climate change et cetera, as we've set out in the other case, we vitally need this award and to have public sector employers coming in who are not so commercially focussed and so vitally connected to the flexibility we need and who are saying they need major revision of the award to fit under it, does represent a real - and again, projected threat that there would be follow on applications to vary the award, and from a totally different perspective to the commercial survival mode that we have to operate in.  So, that's the basis for the resistance.


I'll just say a few things very briefly in reply and then I'll just do a short conclusion and that will be it.


VICE PRESIDENT HATCHER:  We need to finish by 20 past.


MR HARMER:  I'll be able to manage that, thank you.


VICE PRESIDENT HATCHER:  And not pursue the whole thing.


MR HARMER:  In that case, I may not say too much further in - I'll try and go warp speed.  I was going to do an analysis of how the classifications fitted in.  Certainly, maintenance workers would fall back into another award which is carved out and we'd say that the general field worker contains a range of skill based gradations and ski instructors and ski patrollers, carry competency levels that are determined objectively and fit into this classification structure.


In relation to the issue around the Tribunal being misled, I've shown the Tribunal that again, there was an AWU application dealing with these RMBs that was rejected.  In terms of the indoor treadmill, it's clearly not a ski lift and I think that was acknowledged by Mr Hutchings, so there's clearly not coverage and with respect, Commissioner Roe is not correct.


Mount Baw Baw obviously is a special case.  The company went broke and the RMB stepped in accordance with its statutory obligation.  There's no sign of that happening at Mount Hotham, everything is fine.  No need for this entity to take on any further duties.


In terms of the cogent reasons, we would say there's just no problem of any note identified or material that would allow the Tribunal to be so satisfied.  In essence, we have an attempt to get just a better fit and whilst I won't go through the whole of section 134, I'd say that to grant the application would certainly create further instability under 134(1)(f) and I'll otherwise conclude.


Thank you.


VICE PRESIDENT HATCHER:  Mr Duncalfe, did you want to make a submission orally, or are you happy to put any further submissions in writing?


MR DUNCALFE:  Your Honour, I did want to just say a few things, just to clarify our position on this application.  As your Honour would be aware, we initially didn't oppose this submission and then we moved to actually supporting submissions, but after the oral submissions today by the Board itself, I just wanted to clarify our position for the Bench.




MR DUNCALFE:  Certainly, there's been a lot of conjecture about Commissioner Roe's comments and also about how it is quite probable that other Resort Management Boards actually do believe that they are already covered by the Alpine Award and therefore rendering this application quite unnecessary.  From the perspective of the union, we just want to summarise that we don't oppose the application by the Mount Hotham Board to the extent that it actually aligns itself with the comments of Commissioner Roe in that enterprise agreement decision.


As it's been pointed out, that decision states that the Alpine Resorts Award already covers certain employees of the Falls Creek Resort Management Board which is a similar body to the Mount Hotham Resort Management Board.  To our understanding, nothing has changed since that decision has been handed down, in terms of coverage and what employees are and employees are not covered by the Alpine Resorts Award.


VICE PRESIDENT HATCHER:  Do the other Boards have enterprise agreements, or do they apply the Resorts Award?


MR DUNCALFE:  Yes, they do, your Honour.  It's my understanding that in Victoria, the vast majority of employees are covered by enterprise agreements that we're a party to.  I'm under the impression that not many are actually award reliant.


An amendment of the nature of - we were under the impression that this is an amendment to clarify an ambiguity that Mount Hotham Resort Management Board had perceived and that's not an ambiguity that we perceived, because we were operating as though these employees were covered by the Alpine Resorts Award, at all relevant times and would have - - -


VICE PRESIDENT HATCHER:  On the basis of the Commissioner's decision?


MR DUNCALFE:  Yes, that's correct, your Honour.  On the basis of that decision and so, when we initially came across this application, we deemed it quite unnecessary because we saw that there was no ambiguity because of that decision.  On the basis of that, we then supported it on the basis of the fact that it may resolve an ambiguity for the purposes of the Mount Hotham RMB and then also for other Boards operating in that same sphere, if they ever did perceive this ambiguity, that we hadn't even turned our minds to.


An amendment of that nature just for resolving ambiguity that's in line with Commissioner Roe's comments in that decision, we believe that doesn't change the coverage of the award at all.  Therefore, it's quite innocuous.  But if the Mount Hotham Board is actually seeking to extend that coverage - because I'm unclear as to whether the Mount Hotham RMB was attempting to have just the Alpine Award cover all of their employees, if seemed that way, but I don't think that that's something that we actually support.  I don't think that the Alpine Award itself can cover all classifications in the enterprise agreement that we have with them.


Any attempt to actually extend the coverage, in practice, and that practice is informed by Commissioner Roe's comments in that decision.  Any attempt to extend the coverage beyond what Commissioner Roe has articulated in that decision, we would oppose, because that is not the current practice.  The current practice is that the employees within the classifications of the Alpine Resorts Award, that are employed by bodies such as Mount Hotham RMB, are already covered by that award.


VICE PRESIDENT HATCHER:  Mr Duncalfe, if we form the conclusion that the correct position is that none of the Resort Management Boards are currently covered by the Alpine Resorts Award at all, what would be the AWU's position to the application in that scenario?


MR DUNCALFE:  In that scenario, we would support the application in that the Alpine Resorts Award does cover the employees that are under the classifications of the Alpine Resorts Award.  We support the application in the aspect that it formalises the decision by, or comments by Commissioner Roe, that the Alpine - - -


VICE PRESIDENT HATCHER:  Mr Duncalfe, I don't think you've understood the question.  If notwithstanding the Commissioner's decision, our analysis was that, as a matter of law, the Alpine Resorts Award does not currently cover the Resort Management Boards, that is, with respect, the Commissioner's decision was incorrect, as Mr Harmer submits, what would your position, in that context be in relation to the application?


MR DUNCALFE:  In relation to the application by Mount Hotham Board?




MR DUNCALFE:  For that, our position would be that the Alpine Award does apply and in terms of the application itself, we would support the application.


VICE PRESIDENT HATCHER:  Yes, but Mr Duncalfe, if you are wrong, and if you are wrong on the basis that it can't apply because these employers don't actually operate ski lifts, what would your position be in that alternative scenario?  If you need to get instructions, you can say that, but I think we need to know that.


MR DUNCALFE:  I would prefer to get instructions on that, because I am obviously failing to understand the question.  As I am understanding the question you're asking, whether I would support this application at hand in the alternative, not supporting it would lead the Bench to conclude that the Alpine Resorts Award does not apply.


DEPUTY PRESIDENT DEAN:  Do you support the RMB's application to vary the coverage?


MR DUNCALFE:  In a word, yes, your Honour.


VICE PRESIDENT HATCHER:  I mean the Board says - this Board says the Alpine Resorts Award does not currently apply to its operations.  That's the basis upon which it is bringing the application.  It doesn't currently apply, but it wants it to apply.


MR DUNCALFE:  Yes, and our position is that it already applies, so this application, although unnecessary, that will not change the actual operation of the Alpine Resorts Award or coverage as we see it currently stands.


VICE PRESIDENT HATCHER:  I understand that's your prime position; what I'm asking you to do, is to conceive of the possibility that you might be mistaken.


MR DUNCALFE:  I understand, your Honour.


VICE PRESIDENT HATCHER:  In that context, if you are mistaken and it doesn't currently cover them, whether we should vary the award to cover them.  If you want to seek instructions about that, you can do so and we'll let you give your response in writing, but I think we really need an answer to that question.


MR DUNCALFE:  Yes, your Honour, I will seek instructions about that and I do understand the question.  Thank you.


VICE PRESIDENT HATCHER:  Can you put any further submissions you want to make along those lines in writing within seven days?


MR DUNCALFE:  I can, your Honour, yes.


VICE PRESIDENT HATCHER:  Right thank you.  Is there anything further?


Mr Bruno, did you have some interest in this application?


MR BRUNO:  Very briefly.  As the Commission might appreciate, the SDA, there's no retail or anything involved in the Board's operations, but what I thought I'd just add for the benefit of the Commission, I understand the Commission has been provided with a hard copy of the State Government Agencies Award 2010, which as I understand it, covers the main classifications for the Boards.  All I'd like to do in those circumstances is point to the effective penalty provisions which are contained within that agreement.


It relates to overtime, so the normal spread of hours under that particular award is Monday to Friday between 7am and 6.30pm.  After that, so work outside of that normal spread of hours, then you get overtime.  In clause 23.5, so work on a Sunday, effectively has a penalty rate attached to it, which I haven't made a note of, I thought I did.


VICE PRESIDENT HATCHER:  It's double time, isn't it?


MR BRUNO:  It is double time, so the Commission is obviously aware of those particular rates already.  So, I just wanted to draw attention to that fact and say that like we were in the previous application, in order to exercise the functions under section 134 of the Act, the modern awards objective, it would require the Commission to undertake an evaluative task and consider what do the employees currently get versus what does the Alpine Award currently provide to determine what the fair and relevant minimum safety net is, if you were to get to that particular point.


Other than that, I'd just seek to rely on behalf of the SDA to our written submissions which were filed back in May of this year.  Unless I can assist the Commission any further.


VICE PRESIDENT HATCHER:  Yes, thank you.  Anything briefly in reply, Ms Fitzgerald?


MS FITZGERALD:  There wasn't anything in reply.  We've undertaken to provide the Commission with copies of the enterprise agreement and that is there are two - there's an enterprise agreement referred to by Mr Hutchins in his witness statement which has recently been superseded by the latest enterprise agreement that's been agreed with the AWU.  I'm indebted to my friend for clarifying the position.  I didn't want to verbal the AWU, but my understanding is that the AWU has maintained for some time that we were always covered and as a result, for that reason, the Board has applied the BOOT under that award and the State Government Award, in negotiating the enterprise agreement.  That is possibly, in itself, one of the sources of confusion that has been being discussed by Mr Hutchins, perhaps diplomatically.


VICE PRESIDENT HATCHER:  Has the new agreement been approved by the Commission?


MS FITZGERALD:  Yes, it has.  It wasn't in the witness statement because it was since.  Have we got copies of both of those?  I might hand them up now.  I might provide copies of those in a second.  That was the only last bit of material that I wished to put before the Commission.


MR HARMER:  Yes, sorry, your Honour, I don't want to test your patience, but I'm inside the 3.20pm limit, so I'll just say one thing.  On the task that we had undertaken, we were going to provide a consolidated draft of the award next week, which we will do.




MR HARMER:  Another thing we said we would do, is that we would further respond to the draft determination from Mr Izzo.  Mr Izzo in reply today indicated a suggested path that the Tribunal make a decision on what they would do on coverage and then we might reconvene as to what might be an appropriate draft if the Tribunal was so minded.  On that basis, I perhaps won't further convolute the issue of the draft until we reach that point, if that was acceptable to the Tribunal.  All we would do is provide a consolidated award next week.  May it please.


VICE PRESIDENT HATCHER:  All right, thank you.


We thank the parties for their submissions.  Subject to the receipt of the further foreshadowed submissions from the Australian Workers Union, we will reserve our decision and are now adjourned.

ADJOURNED INDEFINITELY                                                           [3.16 PM]



JONATHON RAYMOND HUTCHINS, AFFIRMED................................... PN3258

EXAMINATION-IN-CHIEF BY MS FITZGERALD.................................... PN3258

EXHIBIT #V THE WITNESS STATEMENT OF JOHN HUTCHINS DATED 31/03/2017............................................................................................................................... PN3266

CROSS-EXAMINATION BY MR HARMER................................................ PN3312

RE-EXAMINATION BY MS FITZGERALD................................................ PN3389

THE WITNESS WITHDREW.......................................................................... PN3395

GAVIN ALFRED GIRLING, SWORN........................................................... PN3399

EXAMINATION-IN-CHIEF BY MR HARMER........................................... PN3399

CROSS-EXAMINATION BY MS FITZGERALD......................................... PN3415

RE-EXAMINATION BY MR HARMER........................................................ PN3473

THE WITNESS WITHDREW.......................................................................... PN3496