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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Alpine Resorts Award 2010


(ODN AM2008/59)

[MA000092 Print PR988996]]




9.19 AM, TUESDAY, 31 OCTOBER 2017


Continued from 30/10/2017



VICE PRESIDENT HATCHER:  No doubt the parties have seen a communication from Mr Crabb from the Australian Workers Union, who can't be available today.  I think we'll just go as far as we can with the existing program today and we'll resume tomorrow.


MR HARMER:  Yes, if it pleases, in terms of the existing program today, I think the AWU would have been really supporting our submissions and material on the consent position and we're just awaiting confirmation from the union that they're happy for us to continue that as programmed this afternoon.  Once we get that confirmation and subject to the Commission's discretion, we'd seek to still run that part of the case this afternoon, so we don't lose any time, if that's a matter that - - -


VICE PRESIDENT HATCHER:  The email we received, says, as I read it, says they're content for that to happen.


MR HARMER:  Thank you.


VICE PRESIDENT HATCHER:  The AWU can simply make any further submissions about it whenever they can return.


MR HARMER:  Thank you, may it please.  I'll just quickly address a couple of other minor housekeeping issues.  First of all, there was mention of potential short adjournment prior to re-examination of Mr Girling.  I will need that time, but it will only be 10 to 15 minutes, if the Tribunal pleases.  Secondly, I just wanted to put all the parties on notice - - -


MR IZZO:  Can I just - on that matter, when I discussed the adjournment, I think that was if Mr Harmer needed to obtain instructions in relation to matters about other witnesses, so I would anticipate an adjournment may be necessary after the evidence of Mr Girling is complete.  I don't understand why an adjournment would be required between the cross-examination and the re-examination.  That would be most odd.


VICE PRESIDENT HATCHER:  What Mr Izzo said is my understanding of what we discussed yesterday.  Mr Harmer, if you want to apply for that adjournment when we finish cross-examination, we'll deal with it then.


MR HARMER:  Thank you.  The second point is that I want to call Mr Girling again this afternoon, on a cameo, just in support of the consent issue, and that will be evidence going solely to casual overtime in the industry and the annual leave loading point.  Just brief evidence led ad obviously, if anything arises that any party wants to test later in the week, we're happy for that to occur, but it will be solely going to that issue, if the Tribunal pleases.


Thirdly, there was an objection raised yesterday to paragraph 2.7 of Mr Girling's affidavit.  During the course of the weekend, Mr Izzo and I reached an understanding that we would prepare a schedule of anything we wanted to press in relation to that paragraph.  I can confirm that we've indicated and drew that party into the Tribunal now.  We don't seek to press anything further in relation to that.  May it please.


VICE PRESIDENT HATCHER:  Right, Mr Girling can you return to the witness box please?


CROSS-EXAMINATION BY MR IZZO                                             [9.23 AM]


VICE PRESIDENT HATCHER:  Mr Girling, you remain under your former oath or affirmation.  Right, Mr Izzo.


MR IZZO:  Thank you.  Mr Girling, we presented to you yesterday a map of Perisher, do you still have a copy of that map in front of you?‑‑‑I do.


Just wanted to ask you, in relation to, we talked a lot about - in terms of skiers and snow boarders, that are actually using the resort and on the ski runs, I just want to get an idea of how long it takes, for instance, to go down a run.  If I take you to Mount Perisher which is on the left side there.  If there's an advanced skier, so someone who is an advanced, experienced skier, do you know roughly, how long does it take, once they get to the top of the chair, to get to the bottom.  Are we talking a few minutes, are we talking up to five minutes?  How long does it take to get to the bottom of a run?‑‑‑That could vary significantly depending on the skier's ability, snow conditions, weather conditions and so forth.  They would all have an impact on those things.


An advanced in good conditions, how long does it take to get to the bottom?‑‑‑I couldn't give you an accurate answer on that.  I've never timed anyone doing that activity.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


Thank you.  We talked about the food and beverage staff owned by - sorry, we talked about the food and beverage services provided by the resort.  I was just wondering if you would be able to give me some indication of the numbers of staff engaged.  Are you able to give us an approximation of how many staff would be engaged to provide food and beverage services at the Blue Cow terminal?‑‑‑Across the course of the season, or in peak, or - - -


Let's say on a particular day, how many staff are engaged?‑‑‑Again, it varies on the point of the season; it varies on weather patterns and so forth.  It really - depends on how many of the operations - I mean, Blue Cow has a number of food and beverage operations.  It's not just a singular food and beverage operation within that precinct.


How many staff over an average week are we talking about?  Are we talking about 50 staff being engaged to provide food and beverage services.  Are we talking about 100, are we talking about 20?  What's a rough?‑‑‑Within the whole Blue Cow food and beverage precinct, you're probably talking 50 to 60 staff.


At the Perisher Centre, including Jacks and the Ski Rock Cafe?‑‑‑Again, it varies on what establishments within that precinct is open, and the point of the season and so forth, but it would probably be around 30 to 40 staff in that area.


How about the Snow Gums Restaurant?  I accept the variability et cetera, but roughly over a week, how many staff engaged?‑‑‑Again, between kitchen staff and service staff, you're probably talking around 20, 25 staff.


The Burning Log at Guthega?‑‑‑Burning Log is a relatively small number of staff, probably no more than five or six at an absolute peak.


We've mentioned Jacks, Ski Rock, Burning Log, Snow Gums Restaurant.  Is there any other food and beverage being operated by Perisher on the mountain?‑‑‑There'd be the Powder Ring, which is over towards Mount Perisher.


The Powder Ring, that's at the bottom of the Mount Perisher Double Chair, is it?‑‑‑That's correct.


How many staff would you have there?‑‑‑No more than two or three.


In terms of the equipment or the uniforms provided to your various staff, am I correct in assuming that you provide some type of ski jacket or outer layer to a number of staff.  Is that correct?‑‑‑To a number of our staff.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


To your staff.  So, when they sign up, when they commence employment, if they're a lift operator of if they're a resort guest services, they're provided with some type of uniform, are they not?‑‑‑Yes, depending on the job, employees would be given different uniforms.  Whether it's outdoor wear, or whether it's indoor wear, depending on the position they're in.


If it's indoor wear, that might be a shirt and I'm not sure, a jumper of something like that.  If it's outdoor, they might have a ski jacket type paraphernalia, is that correct?‑‑‑That would be correct.  You have an outer wear jacket, probably outer wear pants.  Maybe a rain jacket as well, yes.


If we just focus on the outer wear jacket, the jacket that's given, am I correct in understanding that there's different jackets for different types of roles.  The maintenance staff have a particular type of outer wear jacket, is that right?‑‑‑That's correct.


The guest services staff, I understand they have a different type of jacket?‑‑‑Guest services staff who work outdoors, predominantly, would have an outdoor jacket, that's correct.


Ski instructors get a different type of jacket again?‑‑‑It's a similar jacket, but it's - to the other outdoor staff, it's different branded, different colours, yes.


Ski patrol have a differently branded jacket again?‑‑‑Ski patrol definitely have a different branded jacket.


These jackets, who's the supplier of the jackets?‑‑‑For Perisher?


Yes?‑‑‑For Perisher at present our supplier is predominantly Helly Hansen.


Do the staff, essentially they're provided a jacket at the beginning of the season, are they?‑‑‑They're provided all their uniform at the commencement of their employment, that's correct.


Do they return it at the end of the season, I take it?‑‑‑All multi-year wear is returned, but any on-skin wear is retained.


I see, yes.


VICE PRESIDENT HATCHER:  The relevance of this will all soon become apparent, Mr Izzo?

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


MR IZZO:  Yes, it should.  Do you have any spares? Do you keep a collection of spare jackets?‑‑‑We have enough to cover all our staff and you have sizing variations.  It varies from year to year, so yes, we would have spares.


I'm just trying to understand, so most of the staffing, if I'm a maintenance staff member and I've been given my maintenance jacket, it's unlikely then that I'm going to be working in another role, because I'm not going to have the uniform for that other role, is that correct?‑‑‑No again, your on-skin wear is generally fairly uniform.  At Perisher - I can't speak for other resorts, but at Perisher, a hire attendant would have the same shirt as a ticket seller.  They do have - - -


If we can focus again just on the jackets, you don't have anyone operating a lift that's not wearing a lift operator jacket, do you?  If someone is operating a lift and they're wearing outer-wear, they are wearing a lift outer-wear jacket, aren't they?‑‑‑Generally they'd be issued that if that was something they were going to do.  For example, at Perisher, our car park attendants will often work on lifts, but they will be issued both a car park uniform and the lift uniform.


If a ski instructor is going to work on the lifts, they would not be wearing ski instructor jackets though, would they?‑‑‑That's correct.  They'd be issued two sets of uniforms.


Can I ask, if we take a - and I appreciate the season runs for a significant time, but if just took August for instance, how many times did ski instructors work in the food and beverage or the provision of food and beverage services at Perisher?‑‑‑In terms of across the season, or just that specific period?


If we just take August, or I'm trying to provide you with a specific period.  If we take the month of August, how many times would a ski instructor have provided food and beverage services?‑‑‑It's not something that I must admit I've looked into in terms of absolute times that people have done it.  It would be a small number of times I would say, in August.


What about September?‑‑‑September, ski instructors, probably to a relatively low degree.


And July?‑‑‑For ski instructors, specifically, yes it's relatively low.  Again, ski instructors in the main are there to be ski instructors.  They're not there to do other jobs.  They are highly professional individuals and they undertake their craft.  They're not someone that moves around jobs very rarely.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


Are you aware of any ski instructor that's provided food and beverage services?‑‑‑Yes, there would have been.


What about ski patrollers?  Is it the same type of answers applicable to them for the months of July, August and September?‑‑‑Yes, ski patrol again, they are specific highly trained individuals, they don't tend to work outside their scope.


When we talk about the skitube operations, say skitube ticket sellers, how many occasions, in say August of this year would they have worked on the lifts?‑‑‑I would say none.


Is that the same for September and July as well?‑‑‑Yes, in terms of ticketing staff, they don't tend to move to lifts.  Again, lifts have to be qualified, they have to be experienced and they have to have gone through the appropriate training to be able do it.


That would be the same for ticketing staff at both Perisher and the skitube?‑‑‑That's correct, in terms of that operation, that's correct.  Ticketing staff would generally work within ticketing operations.  They may work in hire, but they wouldn't work - when you're moving people across into different genres, you're going to move then in where they have skill sets and they have experience and they're qualified to do so.


I take it that none of the cleaners would be working on the lifts or ski instructing or ski patrolling either, is that correct?‑‑‑Cleaning staff would not have worked on lifts, although we've had in reverse.


VICE PRESIDENT HATCHER:  You mean you've had lift operators work in cleaning functions on occasion, is it?‑‑‑That's correct, your Honour.


When might that happen?‑‑‑We saw that more readily occur in June of this year when we spoke about the conditions being a little tougher than we would have liked.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


MR IZZO:  How many staff at say Jacks, or any other - we'll start with Jacks, staff working in Jacks or ski role, down the bottom of the Perisher Centre, providing food and beverage.  How many of them would have worked on the lifts?‑‑‑I would accurately say that none of them worked on lifts.  Again, the food and beverage staff would be moved primarily between food and beverage locations, depending on demand.  If Blue Cow suffered wind hold, we would move them from Blue Cow down to the Perisher Centre, because that's where we're going to see a business lift and we would move them between those locations.


When we talk about the need for portability with food and beverage staff, what we're talking about is the need to move a food and beverage staff member from one food and beverage location to another food and beverage location, is that right?‑‑‑That would be the predominant movement of staff, I would say, yes.


The reality is, most people that are engaged in a particular role, generally perform work in that role, don't they?‑‑‑At Perisher, correct.  I can't speak for other resorts.  The smaller resorts have smaller teams.  They need them to be more versatile, so I can't speak on their behalf.  But at Perisher, being a larger resort with a larger number of specific staff for specific roles, then yes.


When we talk about those other resorts, do I take it from your answer, that the types of questions that I just asked you about what the various individual type roles performed elsewhere, you wouldn't be able to give an answer to those questions in relation to, say Hotham?‑‑‑I couldn't give you an accurate answer, that's correct.


You couldn't give me an answer for Falls Creek, Buller, Corin Forest, Lake Mountain - any of the other membership organisations you represent; you just don't have knowledge of those matters?‑‑‑I understand from those resorts or from each of those resorts have confirmed with me, that they do port staff around, but to what degree, they haven't told me that.  I asked them a very specific question about do you use staff between roles and they all confirmed that that is the case.


If you can just bear with me, the reason I'm asking these questions generically so I don't have to take everyone's time to ask each question individually.  But if I asked you each of those questions, the last say, 25 questions I've asked, individually about each of Hotham, Bulla, Falls, your answer would be you don't know.  Would that be correct?‑‑‑I could not give you an absolute correct answer on their movement and portability of staff.


In terms of absolute accurate answer, let's take an example.  How many ski instructors at Mount Hotham work in food and beverage?  You don't know the answer to that question?‑‑‑That's correct.


That's the same for all the questions I just asked about Perisher, you just wouldn't know the answer?‑‑‑That's correct.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


VICE PRESIDENT HATCHER:  Mr Girling, when you said that the smaller resorts need to be more versatile, what resorts did you have in mind, when you gave that answer?‑‑‑I'd be talking about resorts like Baw Baw, Mount Selwyn, Charlottes Pass.


MR IZZO:  But again, if I asked you how many ski instructors at Baw Baw worked in food and beverage, you don't know the answer to that?‑‑‑I haven't asked the resort specifically on that question, no.


Equally, how many lift operators are working at Mount Baw Baw, that can also work in food and beverage or cleaning?  You don't know the answer to that question?‑‑‑I haven't asked the resorts that question, so I don't have the information, no.


Can I ask you about Corin Forest and Lake Mountain?  You gave evidence yesterday that Lake Mountain doesn't have any ski lifts, that's right?‑‑‑That's correct.


Corin Forest has one, is that correct?‑‑‑That's correct.


It's a magic carpet?‑‑‑That's correct.


For the benefit of the Bench you might just explain to us what a magic carpet is?‑‑‑It's essentially a people conveyor.  Not quite sure if we did see any on the inspection, but it's for generally beginner skiers that stand on the conveyor and move up the hill rather than having some sort of lifting device like a chair or a T-bar or a poma.


My understanding is the magic carpet, unlike the other lifts, T-bar, chair lift, which have large poles and infrastructure behind them, the magic carpet is just along the ground so it has less infrastructure, I imagine.  Still obviously requires electrical voltage things like that, but less infrastructure than the T-bar or the chair lift operations.  Is that correct?‑‑‑Less supporting infrastructure, I think that would be reasonably accurate, yes.


COMMISSIONER RIORDAN:  I'll just assume though, that there'd be a lot more waterproofing that would need to be applied to that infrastructure, particularly the electrical cables and the like that are buried in the snow?‑‑‑Generally, you're correct.  It would be buried within the snow to make it a flat surface in line with the snow.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


MR IZZO:  If they've only got between them, one lift, Corin Forest and Lake Mountain, it's fair to assume there wouldn't be many people at those resorts engaged in lifting operations at all.  Is that fair to assume?‑‑‑In lifting operations, that would be fair.


The majority of the staff must be in the hospitality or other guest services?‑‑‑There are other roles there as well, in terms of both locations have a ski school.


Right?‑‑‑Both would have to have some form of ski patrolling there.  In terms of what their split is on staffing, I couldn't accurately give you an answer on that.


Thank you.  There was a question asked about the Perisher Chamber of Commerce yesterday, can I just confirm I understand, the Perisher Ski Resort is a member of the Perisher Chamber of Commerce, is that correct?‑‑‑That is correct.


Do you know if the Kosciuszko Thredbo is a member of the Thredbo Chamber of Commerce?‑‑‑My understanding is that it is.


I put it to you it is not a member of the Thredbo Chamber of Commerce?‑‑‑Okay.


At paragraph 3.16 of your statement, you talk about Alpine resorts requiring hundreds of millions of dollars to invest to establish and maintain the ski lifts and snow making.  I take it those figures, that's more related to the larger resorts, would that be a fair assessment?‑‑‑As it says in my statement, if you apportion that across the resort scene, it's still a considerable sum.


But Corin Forest isn't putting in a million dollars into ski lifting infrastructure, is it?‑‑‑No, that's correct.


Nor is Lake Mountain?‑‑‑That's correct.


Do Corin Forest engage employees on the Alpine Resort Squad?‑‑‑Yes.


I believe your answer to Lake Mountain is, you don't know?‑‑‑That's correct.


I'm not interested in the quantum for this question, but can I just ask, did Perisher make a profit in the last financial year, 2015/2016 financial year?‑‑‑On an EBITDA basis, yes.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


The year before, 2014/2015?‑‑‑Yes.


And 2013/2014?‑‑‑That's correct.


When you talk in your statement about the business being decimated in certain periods due to weather, you mean the revenue might have decreased, but the operation as a whole remained profitable.  Is that correct?‑‑‑In terms of that statement, it would be around there are periods where the operating costs would exceed revenues.


So decimated on that day, perhaps?‑‑‑On that day, or whatever that period is, that's correct.


But on an overall basis, there's not decimation of the overall?‑‑‑No, I don't think I characterised it as that.  I think I characterised it on certain periods, we can be decimated.


Would you say that's the same for the other resorts?  If we take Thredbo, when we talk about decimation, it's not to their financial position for the season, it's for a particular day or a particular week, if there's no snow that week?‑‑‑Again, that would depend on the season.  I mean we've had some very very bad seasons.  I can't speak in terms of what their EBITDAs were for those particularly bad seasons and how they insulated themselves from those, but in terms of - I guess the question as posed, there are periods which resorts will have negative impact and as we saw in this season, we have negative impact through June, predominantly most of July, but resorts in the main, did well through August and September.


Just on that, I think you gave evidence yesterday that both this year and last year, June and July was particularly bad, in terms of snow fall.  That's correct; that's my understanding?‑‑‑This year June and last year June, absolute.  Last year July it certainly wasn't as bad as - again, snow making is the offset with those things.


In terms of the profitability of the other resorts, Hotham, Bulla, Falls, Corin Forest, I take it you don't know whether they have returned profits in the last few financial years or not?  Is that correct?‑‑‑It's not to my - I don't have knowledge of that.


That's for each of them, you wouldn't know?‑‑‑The only information I would have on that would be the publicly available annual statements that those businesses would have made.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


In terms of the trend from - so we spoke about three financial years, 2013/14, 14/15 and 15/16.  At Perisher, has the profit actually increased over that period, or has it decreased, or is it relatively steady?‑‑‑I couldn't actually answer that question.


When we talk about the proportion of revenue derived from Alpine Lifting, I take it you don't know what proportion of revenue is derived from alpine lifting at Thredbo?‑‑‑No, in putting together that information, each resort submitted their proportions to the central body and the central body came up with the amalgam amount.  We don't share that information between resorts; it's commercially sensitive.


That's the same for each of the individual resorts - Hotham, Falls, Bulla, Corin Forest, Lake Mountain, et cetera?‑‑‑Absolutely, each of the resorts.


Perisher owns an office - ticketing office in Jindabyne I understand, is that correct?‑‑‑We do, we operate a ticketing office out of Jindabyne, that's correct.


Sorry, I missed that?‑‑‑We do operate a ticketing operation out of Jindabyne, yes.


You engage staff down at Jindabyne to service that ticketing operation?‑‑‑Correct.  Staff are rotated into that location.


They will be covered by the Alpine Resorts Award?‑‑‑That's correct.


Thredbo owns a ticketing office in Jindabyne?‑‑‑Yes, they do.


Do you know what award those staff who are operating at the Jindabyne ticketing office are covered by?‑‑‑I couldn't say categorically, but my understanding is that it would be the Alpine Resorts Award.


I understand you're the person from the ASAA who's been instructing Harmers Workplace Lawyers, who are defending the application to expand - in relation to this matter.  Is that correct?‑‑‑That's correct.


I know you've participated in the inspection and earlier this year, you attend there, I think?‑‑‑I was.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


You've been regularly involved in terms of being across the proceedings and providing instructions?‑‑‑Yes, I have.


I'd like to ask you a question that was asked yesterday, why is the Australian Skiers Association resisting the applications and by that I mean, I suppose that the question is, why do you care?  How does it affect you?‑‑‑I don't know if I can speak to the ASAA; I'm a representative and assistance for them on this particular matter, but I don't speak for the ASAA.


Why does Perisher, then?‑‑‑Why does Perisher care in terms of others having access to the Alpine Resorts Award?  Is that the - - -


Yes?‑‑‑If I had to characterise, I think it's the award has been for alpine lifting companies, that's the way it has been way over history.  We don't see any marked reason why that would change.


VICE PRESIDENT HATCHER:  How does it affect Perisher's commercial interests?‑‑‑Your Honour, I wouldn't say that this is commercially driver at the end of the day.  It's driven on the basis that the resorts have an award that is, by its very history, around alpine lifting companies.  Our view is that nothing has changed on that basis and hence that's why we support it remaining as it current.


Can you identify any detriment to what occurs at Perisher, if the coverage was extended as Mr Izzo is trying to seek?‑‑‑I think the primary issue that we would have in terms of as sought, is it would create a greater degree of uncertainty as to which instrument would apply, I think across the industry, which affects our partners, which are these third party businesses.  We've heard over the last couple of days a number of businesses have inadvertently used the award incorrectly, but to push that across on a geographic basis, we believe has some significant issues to it.


How does that affect Perisher?  I mean, there might be some small businesses at the margins of these geographic zones there might be some doubt, that's possible, but I'm still struggling to understand how that affects Perisher, or any other member of the ASAA?‑‑‑As I say, your Honour, I can't speak on behalf of the ASAA in terms of the actual - each member would have a different view, I take it, throughout the ASAA.  But for Perisher, ours is around the award has remained our clear instrument for the resorts and that's why we continue to wish it to remain as it is.


All right.

***        GAVIN ALFRED GIRLING                                                                                                              XXN MR IZZO


MR IZZO:  Just bear with me for a moment please.


I have nothing further.




MR BRUNO:  Before re-examination commences, there's one topic that I wanted to address by way of cross-examination with this particular witness.  I can be very brief.


VICE PRESIDENT HATCHER:  But is it cross-examination?


MR BRUNO:  Yes, it's in the nature of cross-examination.


VICE PRESIDENT HATCHER:  It's too late to find out.  We'll see what the question is.

CROSS-EXAMINATION BY MR BRUNO                                        [9.54 AM]


MR BRUNO:  Yes, if I could be permitted to commence.


VICE PRESIDENT HATCHER:  Just ask the question Mr Bruno.


MR BRUNO:  Yes, Mr Girling, could I take you to - do you have your statement in front of you?‑‑‑I do.


Could I take you to paragraph 6.6?  You got that in front of you?‑‑‑I do.


Do you remember yesterday, Mr Izzo for the applicant asked you some questions about that particular paragraph?‑‑‑Yes, I do.


If I can take you to the wording of that paragraph.  See how you say:


The work undertaken by employees covered by the Alpine Resorts Award is often undertaken by snow sports enthusiasts.

***        GAVIN ALFRED GIRLING                                                                                                         XXN MR BRUNO


Do you accept that it's the case that it's not always snow sports enthusiasts that are doing work under the award?‑‑‑Absolutely, that's why I use the term often.


It's a generalisation, you accept that?‑‑‑Absolutely.


Can I ask you about the operations of the resorts during the year, specifically with ski lifting?  Can you clarify, do the resorts engage in ski lifting, say in the summer periods?‑‑‑Not ski lifting, no.


Do they use any of their infrastructure around moving people in the summer periods?‑‑‑Absolutely.  Some resorts do use their lifting during the summer periods.


Is that the mountain biking for example?‑‑‑Mountain biking, sightseeing, trail walking, yes.


In terms of the operation of the lift companies, or the resorts, do they keep open their retail outlets, their food and beverage outlets during the summer periods?‑‑‑Some resorts do, depending on their level of summer operations, yes.


VICE PRESIDENT HATCHER:  What lifts does Perisher operate in the summer?‑‑‑We don't, your Honour.


You don't.


MR BRUNO:  I don't know if you can answer this question, but I will ask it.  You may or may not have the information, but are you able to say how many staff the lifting companies, so the ASAA members, how many staff they employ in the winter period?  So, using the last winter period as an example?‑‑‑No, I couldn't give you an accurate assessment of the total number employed by the resorts, no, I don't have that information.


For Perisher, can you answer that?‑‑‑For Perisher I absolutely can.


What's the number?‑‑‑We - across the course of a season, we'll have around 1300 employees.

***        GAVIN ALFRED GIRLING                                                                                                         XXN MR BRUNO


If we then look at say the off-season, in the summer period, can you provide a number which Perisher employs in the off-season?‑‑‑On a year round basis, we'd have around 150 permanent staff.


Can I ask you about the sourcing of staff in relation to the winter period?  If we take Perisher as an example.  I imagine some of the staff that come in on a seasonal basis to work in the winter would come from the local areas immediately Perisher?‑‑‑A number of them would, yes.


Is that because it represents in the local area a good employment opportunity for people?‑‑‑I would like to think so, yes.


I imagine there's another category though of workers.  Would there also be some itinerant workers, and by that, I mean people who don't have a fixed address and they move from place to place, that come and work at Perisher?‑‑‑There would be a large number of staff who are not from the local region who move there specifically to work for the season, that's correct.


Do you know whether there's also staff who aren't necessarily itinerant, because they have a home elsewhere, but they come just to Perisher to work for the ski season on that temporary basis?‑‑‑Absolutely, there would be.


VICE PRESIDENT HATCHER:  How do you recruit your seasonal staff?‑‑‑The vast majority of our staff, your Honour, actually come from referral programs.  But there's also - - -


Referrals by who?‑‑‑By our current and former staff.


I see.  Do you have a lot of overseas staff?‑‑‑We certainly have a proportion, yes, both sponsored and working holiday visa people as well.


What proportion might that be in the ski season?‑‑‑It would vary season to season, but it would be, I would say, approximately - if we use this season as an example, around 200 of our seasonal workforce, would be overseas workers.  I guess the nature of the work, the fact that many of the employers provide accommodation and so forth, it fits well for those type of workers.


Thank you.

***        GAVIN ALFRED GIRLING                                                                                                         XXN MR BRUNO


MR BRUNO:  Can I take you back to the off-peak season, so when the skiing is not available.  You'd accept that the staff - I think it was 100 or 150 that are employed by Perisher, clearly aren't there to ski.  It's probably an obvious question, but would you accept that?‑‑‑It's a hard one to answer on the basis that I would say the predominant number are there on the basis that they are skiing and snowboarding enthusiasts and they make a life for themselves down there and live there on a year round basis.


VICE PRESIDENT HATCHER:  There's a number of permanents?‑‑‑That's correct, your Honour, so whilst there'd be a number of staff that don't ski, and sadly, your Honour, I'm one of those, a lapsed skier, but for the vast majority the reason that they originally arrived in that location is that they are skiing and snowboarding enthusiasts.


MR BRUNO:  But the reality is they can't do that in the seasons apart from the ski season?‑‑‑That's correct.


Would you accept that the staff who travel up to Perisher, for example, from other locations, who reside elsewhere, when they come to work in the resorts they're leaving their ordinary lives behind for a period of time?‑‑‑For those in that circumstance, absolutely.


It's the case that they've come to Perisher, for example, to work for that period of time and they can ski when they have some available time?‑‑‑Yes.


Would you accept then, as a general proposition, for that category of staff members, that they don't get what they might ordinarily do on a weekend, when they're at Perisher, if they're working on a weekend?‑‑‑It's difficult for me to say.  I mean, a lot of our workers are coming from hospitality, tourism backgrounds, so they tend to work weekends when they're not at our establishment.  It's a difficult one because I'd have to have an assessment of their backgrounds.


I probably unfairly asked you to speculate a little bit on that issue.  But for example, if they weren't in that circumstance of working in hospitality back in Melbourne, for example, those particular staff members, when they're working at Perisher across the weekends, can't spend times with their families in Melbourne, if that's where they're from?‑‑‑


DEPUTY PRESIDENT DEAN:  They might not want to spend time with their families, Mr Bruno.

***        GAVIN ALFRED GIRLING                                                                                                         XXN MR BRUNO


MR BRUNO:  Not everyone does, that's right.


MR IZZO:  I have an objection, your Honours.  I think - I mean that question, the answer might be obvious in any event.  If you're in Perisher, you're elsewhere.  I think the question is either ask Mr Girling to speculate upon individual people's circumstances, where he doesn't have the answer, or alternatively, there are a couple of obvious questions where the answer is so obvious, there's no benefit derived from the answer.  I'm not sure - that's the basis of the objection, but that particular question, if they're at Perisher and their families are located elsewhere, obviously, they're not with their families.


MR BRUNO:  Look, I probably agree with my friend on that, so I don't intend to press those questions any further.  I can make a submission about that at the end of the day.  I've just got one more question then.


In terms of logistics, it's the case that not all employees even in the ski season, are able to work on the weekends, there'd be a surplus of staff, is that right?‑‑‑You roster those arrangements around so that there'll be staff off on any given day, whether that's a weekend or whether that's a week day, that's correct.


Some people will have their weekends off?‑‑‑By way of roster, some will have either full or part of the weekend off, absolutely.


I have no further questions.


MR HARMER:  Given the objection and the time, I'll just move straight into cross.

CROSS-EXAMINATION BY MR HARMER                                  [10.03 AM]


Mr Girling, you were asked some questions about the role of Perisher in ski hire, do you recall that?‑‑‑Yes I do.


You were asked proportionality of Perisher's role in ski hire versus other outlets throughout the resort.  Do you recall that?‑‑‑I do recall that.


There's an entity Rhythm Snowline at Smiggins, has a ski hire and equipment operation.  Are you aware of that?‑‑‑Yes, I am.  I think you saw it during the inspection.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


Could you just give the Commission an idea of the operation of that particular business?‑‑‑Rhythm is a large hire outlet.  Its main hub is in Cooma.  It's a very large hire outlet from Cooma, but has recently put a footprint into the Smiggins area as well.  It also has operations in Japan as well.


You were asked a number of questions about food and beverage and other services at other resorts and on a number of occasions you gave answers to the effect of it varies across the resorts.  Are you able to just, as best you can, outline to the Commission the key differences between various resorts within the ASAA?‑‑‑All the resorts, I think, have unique factors to them.  For example, I mean Thredbo has a head lease, so it has a number of other obligations outside of operations such as those at Perisher which has strip leasing.  Some resorts are snow-bound, like Charlotte Pass.  Some are closer to major areas, or some are closer to Melbourne for example, in Victoria, than others.  They all have their own unique factors.  They are all very different in terms of their operations, in terms of what they do, what they don't do, how much food and beverage they do, how much hire they do.  They're all very very different resorts.


You referred to Thredbo and its difference, would you describe Thredbo as a typical resort within the industry?‑‑‑No.  I would say that Thredbo's very very different compared to a number of factors for other resorts.


Why is that?‑‑‑I think predominantly around their head leasing arrangement.  It makes it very different in terms of their operations and therefore, are very different to resorts like Perisher or others that operate confined on their lifting.  The rest of the resorts, I guess, are more lifting based companies.  Thredbo has a far greater operation because of their head leasing arrangement.


When you say a far greater operation, are you talking about a wider expanse of business?‑‑‑That's correct.  Everything from municipal services to development and so forth.


Which other resorts are more of the Perisher one?‑‑‑I would say the others are closer to that site.  I mean, it's hard again, they are all very very different in terms of their operations, but I would say that the others are closer to the Perisher model, simply on the basis of their leasing arrangements.


In terms of a sample of the industry, what would you say the conditions you saw on the inspection, if one had to take a sample of the industry across those two resorts, is that indicative of the entire industry?  How does it fit in?‑‑‑You're looking at two resorts that are very very different.  I think that would have been self-evidence during the inspection.  They are very different in terms of their operation; they are very different in terms of the way they're developed; their history is very different.  So, they're very different operations.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


Compared to a smaller resort, take Charlotte Pass for instance?‑‑‑Again Charlotte Pass is a unique resort.  It's quite remote, but it would be closer, if I had to characterise between the two models, I would say it would be closer to the Perisher model.


Mount Selwyn?‑‑‑The same, closer to the Perisher model.


Mount Buller?‑‑‑The Victorian resorts would be - again, I'm going to two very different operations.  I would say they would lean more towards the Perisher operation model, yes.


Falls Creek?‑‑‑Yes, Perisher.


Thank you.  Now you were asked some questions about the impact of the weather on various aspects of business in Perisher, do you recall that?‑‑‑Yes, I do.


It was put to you a number of times that people would already have their lift tickets, do you recall that?‑‑‑That was put to me, yes.


Would there be any occasion when poor weather would impact the acquisition of lift tickets for people who had actually travelled to the resort?‑‑‑There's still a large number of guests buy their ticket on the day, that's correct.


What percentage of your business is a daily acquisition?‑‑‑I couldn't give you an accurate assessment, it would change on a day by day basis in terms of beginning of season, mid season, end of season.  It would depend on - that mix changes.  But there is a high proportion of people who still buy day tickets in difference to say a seasonal pass program.


Would that be your understanding across the industry?‑‑‑That is my understanding.


In relation to that same line of questions, there was some questions put around the impact on food and beverage operations, for example, and the mountain.  Do you recall that?‑‑‑Yes, I do.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


Would there be any instance where people are trapped through weather and they would actually have to take shelter or have recourse to a food and beverage outlet?‑‑‑Perisher that's less so because of the transport networks, because of as we've just talked about in terms of the difference in the aerial and surface lifting.  Our train is a point of difference in terms of getting people out, so there's not so much of that, no.


Are you aware of that issue at other resorts too?‑‑‑I'm not aware of that issue at other resorts.


Again, on that issue of poor weather, what's the impact on food and beverage businesses that are at the base of the mountain, or away from the actual ski lift operations?‑‑‑Again, it depends on what the weather event is.  But we've seen in instances where we have poor weather, again, it depends on where the winds come from and so forth, but that could shut down a whole precinct like Blue Cow.  The guests would move from Blue Cow down to a more covered area like Perisher Valley.


In terms of the Perisher Centre, food and beverage operations, what's the impact of that sort of event?‑‑‑In that type of event, it gets very very busy within that area.


You were asked some questions this morning about multi-hiring in the context of jackets and things.  Do you recall that?‑‑‑I do recall that.


Related to that, the issue of transfer.  Can you just explain to the Tribunal, starting with Perisher, how multi-hire and transfer of employees operates at the resort?‑‑‑Well multi-hire is, I guess, a multi-facet way of moving staff between locations, but it's also used I guess, by staff in - it would be based on a number of factors, so it would be the willingness of staff to move between locations.  It would be based on their skill and experience as to where they're able to be used.  Quite often, staff will work in a number of roles because they are there to work, so they will take on a number of positions.  They might be working on the mountain during the day and work in the bars or work in a restaurant at night.


VICE PRESIDENT HATCHER:  That's to maximise income, that is?‑‑‑Absolutely, your Honour.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


When you said it depends upon willingness of staff.  Are there some staff who simply don't want to.  They might just want to do a ski lift and that's all?‑‑‑Absolutely, your Honour.  There will be occasions where we would go into areas and offer alternate employment because they're area is perhaps a little quieter and we know there is going to be a large volume say, in the food and beverage area.  As I say, a number of people are highly professional.  They have honed their skills for many many years and they view that to say well I'm not here for that particular element.  I don't wish to do that work, and that's fine, that's not a problem with that.


Essentially, it's voluntary?‑‑‑Absolutely, your Honour.


MR HARMER:  I think in that context, you were asked in the questions about comments you made on the smaller resorts and the need for flexibility in their staff, do you recall that?‑‑‑Yes, I do.


Are you able to elaborate on that same issue or multi-hire and transfer of staff in the smaller resorts?‑‑‑Again, it varies from resort to resort.  My understanding in talking to my colleagues from some of those resorts is that particularly - - -


MR IZZO:  I object at this point.  This just sounds like hearsay evidence.  We have had cross-examination on this point.  I appreciate Mr Harmer is entitled to re-examine.  This is just hearsay now.  That's all that's being asked.


MR HARMER:  It'd be better to be - - -


VICE PRESIDENT HATCHER:  That doesn't automatically make it inadmissible.


MR HARMER:  It'd be better to be dealt with by way of submission going to weight, I would have thought, your Honour.  It'd certainly be appropriate at this stage.




MR HARMER:  Sorry, Mr Girling, could you must make a comment on the issue of multi hire and transfer within those smaller resorts?‑‑‑Again, talking to my colleagues in those resorts, it varies but for example, a resort like Charlotte's Pass, which is effectively snowbound, there is a capacity for staff to work across a multi number of roles, and given that they are living on site, it's attractive for them to optimise their time there.  So they will work within a number of those establishments.


You were asked some questions and made a comment about the necessity to utilise transfer in tough conditions, do your recall that?‑‑‑Yes, I do.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


Can you just further explain to the Commission what you mean by that?‑‑‑So in periods where work is not available readily, perhaps in their core role, then we offer, and have offered employees the opportunity to work between locations.  The example I gave is, we had some – in terms of lifting, it didn't open as broadly as we thought it would through a June period.  We offered staff the ability to move into some housekeeping/cleaning roles and a number of them took up those opportunities and worked within those locations.  So it enabled us to retain those staff when there was perhaps not the work that would have been financially viable for them otherwise.


And I think you referred in that context to 2017, and June and July being difficult months, do you recall that?‑‑‑In – yes, I do.


Are you able to give the Commission any idea of what June and July represent as a percentage of your season's revenue?‑‑‑I couldn't give you an accurate assessment on that.  It would vary between the years.  Obviously with a lower June and July it would have had an impact on us at those particular periods.  I mean, we've certainly had better June and July's.  But a lot of that, in some ways, was mitigated by things like snow-making and so forth, where we were still able to offer a product to guests, so - - -


You referred in response to a recent question on this issue from the Commission to voluntary transfer at Perisher.  Are you aware of the smaller resorts effect their transfers voluntarily or by direction?‑‑‑I couldn't accurately answer that question.


You were asked some questions about Lake Mountain and its lack of ski lifting, do you recall that?‑‑‑Yes, I do.


And I think in an answer yesterday you referred to its relationship with Mount Baw Baw, do you recall that?‑‑‑Yes, I do.


Can you just further explain exactly what's happened between Mount Baw Baw and Lake Mountain?‑‑‑Again, my understanding is that Mount Baw Baw and Lake Mountain are operated by the Southern Alpine Resort Management Board.  That came into effect from January 2017, so that resort management board operates both of those ski fields.


So in terms of the ski lift operator at Mount Baw Baw, that is the resort management board for that resort?‑‑‑That's my understanding, that's correct.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


And can I ask this, did the resort management board, as a government authority, step in and the previous ski lift operator (indistinct).


MR IZZO:  That's a leading question.


MR HARMER:  Are you aware of why the resort management board is involved at Mount Baw Baw?‑‑‑I couldn't accurately describe why they've moved across to that model.


Okay, thank you.  And are you able to inform the Commission as to the extent to which the Mount Baw Baw and Lake Mountain resorts are an integrated operation or not?‑‑‑I couldn't accurately assess that, no.


Thank you.  Now you've made reference to bad periods of a season.  Are you able to comment on Perisher's views around climate change and - - -


VICE PRESIDENT HATCHER:  That's all in the statements, Mr Harmer.


MR HARMER:  There's certainly a lot of material.  I won't press it, thank you.  You were also asked some questions around the impact of the granting of this application on Perisher, do you recall that?‑‑‑Yes, I do.


What, if any, concerns does Perisher have in relation to flow on?


VICE PRESIDENT HATCHER:  I think that's called a leading question, Mr Harmer.


MR HARMER:  I think you're right, your Honour.  I won't press it.  Can I ask this.  Are you able to inform the Commission of the view, if any, of Perisher towards the United Voice submission that was lodged in these proceedings?


MR IZZO:  Objection.  I don't see how that arises from the cross-examination, your Honour.


VICE PRESIDENT HATCHER:  Was that raised in cross-examination?


MR HARMER:  It arises from this question around the perceived impact on Perisher.

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER


VICE PRESIDENT HATCHER:  I'll allow the question?‑‑‑Sorry, if you could re-ask the question.


MR HARMER:  Sorry, I was asking, what if any, is the reaction of Perisher to the recent United Voice submission concerning the award?‑‑‑I think I'd be – to be honest, your Honour, I'd – we have a major concern about either a significant change to the award, or the award being abolished.  I think that would be self evident that we would have major concerns about that submission.


I won't proceed further.  No further questions, your Honour.


VICE PRESIDENT HATCHER:  Thank you for your evidence, Mr Girling, you're excused.  You can return to the body of the courtroom.

<THE WITNESS WITHDREW                                                          [10.22 AM]


Right, Mr Izzo, or Mr Scott?


MR SCOTT:  Thank you, your Honour.  I understand Mr Foster, who is the scheduled next witness, is just outside and available.  Before I call him there's just one matter of housekeeping which is, our client's filed a bundle of photographs of the resorts on 31 March and we seek to tender that bundle.  I raised it with my colleagues yesterday and there appeared to be no objection to that course.  I have a couple of copies if that assists.


VICE PRESIDENT HATCHER:  No, we've got it.  All right, so bundle of photos of ski resorts will be marked exhibit J.


MR SCOTT:  If the Commission pleases.



I will call Ian Foster, of the Commission pleases.




THE ASSOCIATE:  Could you please state your full name and address.


MR FOSTER:  Ian Foster, (address supplied).

***        GAVIN ALFRED GIRLING                                                                                                       XXN MR HARMER

<IAN FOSTER, AFFIRMED                                                              [10.24 AM]

EXAMINATION-IN-CHIEF BY MR SCOTT                                  [10.24 AM]




MR SCOTT:  Mr Foster, good morning.  Can you please state your full name and address for the record?‑‑‑Ian Foster, (address supplied).


And you've given a witness statement in these proceedings?‑‑‑Yes.


Have you got a copy of your statement in front of you?‑‑‑No, I don't.


I can make one available.  Your Honour, I understand there's one objection to that statement which perhaps – and there's been an agreement to strike the final paragraph out of this statement, paragraph 64. So perhaps if we can deal with that before the statement is tendered.


VICE PRESIDENT HATCHER:  All right, so I'll strike out paragraph 64.


MR SCOTT:  Mr Foster, are you comfortable that that statement is true and correct, to the best of your knowledge and belief?‑‑‑Yes, I think so.  Yes.


I tender that statement, your Honour.


VICE PRESIDENT HATCHER:  All right, so the witness statement of Ian Foster dated 28 March 2017 will be marked exhibit K.


***        IAN FOSTER                                                                                                                                 XN MR SCOTT


MR SCOTT:  Mr Foster, can I just ask you a couple of questions.  If I can take you to paragraph 32 of your statement, and you indicate at paragraph 32 that all of the seasonal workers you employ to work at Lanterns(?) and are people who want to spend the winter snow season skiing or snowboarding.  And then at paragraph 33 - you give some reasons for you making that assertion, in paragraph 32, and you indicate firstly that you've had conversations with your employees; secondly that you see your employees on the ski fields, you observe them heading up the mountain; thirdly, at the start of the seasons you assist seasonal workers to find second-hand skiing equipment; and then fourthly, you indicate that you help employees, and I think perhaps there might be a typographical error there but, "I help employees" – sorry, "I help get employees discounts of the season passes to ski lifts."  Is there anything else that you wanted to say about the assertion at paragraph 32 about – you indicated that your employees want to spend the winter snow season skiing or snowboarding?‑‑‑Well, only that as an operator who's been in Thredbo for 27 years, running our business, I know that the employees, the seasonal employees we get coming to Thredbo over the winter season are there specifically because of the snow and to enjoy all that it offers.  Most of them will end up on the lifts, skiing.  Some of them, you know, may just be tobogganing and playing in the snow, enjoying that environment.  But it's definitely all about the snow and skiing, and snowboarding.  That's what brings them there.  And, you know, working with them right through that season and in hiring them, that process involved in hiring somebody and talking to them, deciding whether they're suitable to work in your business, you get to understand what their motivations are, quite well, and I know for a fact that that's what motivates people to come to Thredbo in winter.


Sure.  Can I take you to paragraph 39 of your statement, just over the page.  You talk about at 39, "It's a lot busier on the mountain on weekends, rather than mid week."  And then if I take you down to paragraph 42, you indicate that, "Generally if you were on the mountain on a weekend in July or August you'll be standing in a queue for 15, 20 minutes to get on a lift and then on the way down the ski runs are very crowded.  On the week days it is a much more pleasant, less crowded skiing experience."  What's the source of your knowledge for making those assumptions?‑‑‑I guess the source of my knowledge is 40 years as a skier, skiing overseas and in Australia, and having been in Thredbo working in the business I'm now, since 1990, I understand the ebb and flow of skiing on the mountain, very well because I love skiing, as do most people who come to Thredbo.  So I know for a fact that if I turn up at the chairlift at 8 o'clock on Saturday morning I'm going to have a much bigger queue to stand in then I would if I turn up on Wednesday morning.  If I ride up the chairlift on a Saturday, I'm going to have a lot more skiers on the hill, a lot more to contend with in terms of traffic, it's going to detract from my experience as a skier who loves skiing, compared to that same experience on Wednesday where there are much fewer skiers on the mountain generally and much more room to move.  So it's quite a different experience.


DEPUTY PRESIDENT DEAN:  Can I just interrupt for a second.  Is there any party that actually disputes that it's busier on the weekend than on a week day?


MR BRUNO:  No.  If I could address what the dispute is, and that might assist.  It's just the – what then motivates particular days, not the fact that it's busier or not, okay.


VICE PRESIDENT HATCHER:  That's paragraph 43.

***        IAN FOSTER                                                                                                                                 XN MR SCOTT




MR SCOTT:  No further questions, thanks, Mr Foster.



CROSS-EXAMINATION BY MR HARMER                                  [10.30 AM]


MR HARMER:  Thank you.  Good morning, Mr Foster.  Which Modern Award currently applies to your operations at Thredbo?‑‑‑The Hospitality Award 2010.


And is that an award you've consistently applied since 2010?‑‑‑Yes.


Thank you.  And can you just summarise to the Tribunal why it is that you want to move to coverage under the Alpine Resorts Award?‑‑‑The Alpine Resorts Award has, well, a couple of benefits I see for my business.  One is an opportunity to have seasonal, part-time classification for my staff working just for the winter season on a part time basis, and then obviously the other benefit is the lack of penalty rates for weekend work.


So is a premise of that, that the Hospitality Award, you think, doesn't allow for seasonal or part-time work?‑‑‑It does – well, the part-time arrangements that exist in the Hospitality Award, I don't think are as flexible as those in the Alpine Resorts Award.


Yes, well, in what sense?‑‑‑I'd have to have a look at the award more closely to specify.


And you've mentioned you've been a skier internationally and in Australia for 40 years, and in Thredbo for 27 years, correct?‑‑‑Yes.


And you have a very strong understanding of the commercial environment at Thredbo, is that correct?‑‑‑Yes.


Thank you.  The business that you are currently operating, is it true to say that year on year, it's profitable?‑‑‑Yes.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


And is it your anticipation that if you were under the Alpine Resorts Award your profitability would increase?‑‑‑My profitability would increase, perhaps not as a direct result being under the award but the ease of operating my business, I think, would improve and that may then lead to improved profitability.


Is that the rostering issue you're referring to?‑‑‑Partly rostering, and also offering – I get more incentive to people who work for me to stay throughout the season and make their experience working for me better.


And the issue you mentioned around lack of penalty rates, what does that represent to your business?‑‑‑Obviously at the moment we have people working on Sundays and, you know, we're paying them a higher rate.  If I'm not paying a higher rate for the guys working for me on Sunday then that money, I'd put into offering them some additional benefits in working for me that would entice loyalty throughout the season.


And do you give that answer because they would otherwise be paid less for their weekend work, is that correct?‑‑‑Yes.


When you say, some other incentive, what do you mean by that?‑‑‑The staff have to rent accommodation for the winter so I could offer some subsidy on that, or also on the cost of their lift pass.


And that would be an attraction in terms of attracting and retaining staff, would it?‑‑‑Yes.


VICE PRESIDENT HATCHER:  So don't you already do that?‑‑‑Pardon me?


Don't you already do that?‑‑‑To a certain extent with the accommodation.  With the left passes I just – there are discounts available to members, or business operators in Thredbo that I help my employees access just by providing a letter.


Right?‑‑‑But if I were able to save money I could apply to actually buying a pass for them upfront which would be a real incentive to have people come back to work for me.


When you talk about loyalty for the course of the season, what does that mean?  Do you have people who leave during the course of the season?‑‑‑With a - - -

***        IAN FOSTER                                                                                                                            XXN MR HARMER


Or go somewhere else?‑‑‑Yes.  With a business like ours, having staff start at the beginning of the season, train them up so they know what they're doing - it's a relatively short season, and have them continue to work through the season and finish at the end, is much more efficient and an easier way to work than if you have staff leaving mid way through the season.


And so just take a step back.   What was the rostering problem you have with the Hospitality Award for part-time workers?  You were talking about greater flexibility in the Alpine Resorts Award that wasn't in the Hospitality Award?‑‑‑Yes.  So it's just the ability to, if the winter ends up finishing early because we run out of snow in early September, you know, I can let the staff finish earlier, even if they're on sort of a roster where they're looking a week or two weeks ahead.


Thank you.


MR HARMER:  So are you there referring to flexibility in the Alpine Resorts Award to finish up staff early by shorter notice if there's an early end to a season, is that correct?‑‑‑Yes, if there's an early end to the season.


And I think in your statement you refer to Kosciuszko Thredbo Pty Ltd as a competitor of yours, correct?‑‑‑Their – certain businesses in their operation are, yes.


Are you aware of what portion the Kosciuszko Thredbo Pty Ltd business is in the accommodation field?‑‑‑Well, no, not in terms of a number, no.


You'd agree that they're predominantly a ski lift operating company, correct?‑‑‑Yes, they have a large – yes, a large business operating ski lifts.


And their profitability is dependent upon a large range of areas of business, not just accommodation, isn't it?‑‑‑Yes, it's a combination of accommodation - - -


MR IZZO:  I object to that question.  I don't understand how Mr – the previous questions may have been okay, but how Mr Foster is going to be able to provide evidence on where and how Thredbo's profitability is derived and in what proportions, that's not within his knowledge.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


VICE PRESIDENT HATCHER:  Well, if he doesn't know, he'll say, "I don't know," presumably, but you've been there a long time so I presume you're fairly familiar with the way the whole set up works?‑‑‑Well, obviously I don't analyse anybody's accounts so - - -


What are the businesses that Kosciuszko Thredbo operate that you regard as your competitors?‑‑‑Thredbo Apartment Management.


And to the extent that they have the two benefits in the Alpine Resorts Award which you said you wanted to access, how do you say they use those award flexibilities to, as it were, give themselves a competitive advantage over you?  For example, is it reflected in pricing or some other benefit that they can offer the customers?‑‑‑It'd be hard to determine exactly.


Can you identify any way you suffer from a competitive disadvantage because of their access to that award?‑‑‑Well, if they're employing people who work on a Sunday and paying them a substantial amount less than what I'm paying for Sunday work, that'd be one obvious area.


That would only disadvantage you if they were using that saving to cut prices rather than simply pocketing the difference?‑‑‑Yes.


Anything else?


MR HARMER:  And are you aware of any link between staffing at Thredbo and cut prices around property management or accommodation operated by the resort?‑‑‑No.


So when you talk about competitive advantage they have, that's an apprehension you have, is it?‑‑‑Yes.


Now in terms of property management at Thredbo, there's a number of private property management entities operating at Thredbo, correct?‑‑‑Yes.


And some of those property management entities also have integrated links back into Jindabyne, correct?‑‑‑There's one.


Which one is that?‑‑‑Raine & Horne.



***        IAN FOSTER                                                                                                                            XXN MR HARMER


VICE PRESIDENT HATCHER:  Sorry, what was that answer again?‑‑‑Pardon?


What was that answer again?  I didn't hear your answer?‑‑‑Raine & Horne.


Raine & Horne?‑‑‑Yes.


MR HARMER:  Now Raine & Horne have a franchise operating, or at least, an office operating in Thredbo Village, correct?‑‑‑Yes.


And they also have an office in Jindabyne, correct?‑‑‑Yes.


And it's the Jindabyne franchise that has a wing in each of Jindabyne and Thredbo, correct?‑‑‑Yes.


And they have staff on the ground in Thredbo, servicing property management for people staying at Thredbo, correct?‑‑‑Yes.


And they have staff at Jindabyne performing those duties in relation to a number of resorts throughout the industry, correct?‑‑‑I suppose so, I don't know.


All right.  The staff based in the office at Thredbo for Raine & Horne, you'd be aware that they move between Jindabyne and Thredbo in the performance of their duties, correct?‑‑‑No.  No.


Okay, so they're based permanently in that office, are they?‑‑‑I don't know.


Raine & Horne, for example, service some apartments in the Bobuck Apartments, don't they?‑‑‑Well, I'm not sure which ones they service.


All right, thank you.


VICE PRESIDENT HATCHER:  So were those questions premised on the basis that they're providing accommodation services as referred to in ABI's draft determination?

***        IAN FOSTER                                                                                                                            XXN MR HARMER


MR HARMER:  That's correct, your Honour.  That and the fact that it's the one entity.


VICE PRESIDENT HATCHER:  No, but I assume you asked that question premised upon the basis that they would be caught up in the Alpine Resort Award if the determination was granted?


MR HARMER:  Yes, your Honour.


Can I ask you this.  What's the difference between your property management up at Thredbo and, say, what Raine & Horne does at Thredbo?‑‑‑Well, I don't really understand what – how they carry out their operations so I'm not really sure.


But you would have the understanding that they would take bookings for people coming to Thredbo and look after the apartment and the accommodation that those people are going to stay in, correct?‑‑‑Yes.


And that's parallel to what you do up at the Lantern Apartments, correct?‑‑‑Yes.


VICE PRESIDENT HATCHER:  So for example, they would organise the cleaning of the apartments?‑‑‑Well, I – yes, in one form or another I suppose they would, yes.


MR HARMER:  And if anything malfunctions or there's a need for attention to the apartment during a stay, they would be the entity that would service that requirement of that client?‑‑‑Yes.


And again, that's similar to what you do in your role, correct?‑‑‑Yes.


There's an operation based out of Thredbo called, "Visit Snowy Mountains," you're aware of that operation, yes?‑‑‑I'm not aware that they're based out of Thredbo.


Okay, well they're an entity that services property management throughout the Snowy Mountains region, is that your understanding?‑‑‑No.


They service accommodation of people within Thredbo, correct?‑‑‑Yes.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


They also service accommodation at Perisher Blue, Cooma, Jindabyne, is that correct?‑‑‑Not that I'm aware of, no.


There's a large number of property management services that operate out of Jindabyne that service property management similar to yours within Thredbo, correct?‑‑‑Yes.  I don't know if it's a large number.


If I take an example that Forbes Stynes Real Estate trades as Thredbo Ski Accommodation.  Are you aware of that operation?‑‑‑Yes.


And they look after property management and accommodation within Thredbo, correct?‑‑‑Yes.


And they do that from a base as a real estate operative based within Jindabyne, correct?‑‑‑I think they're based in Lake Crackenback.


All right, and Lake Crackenback is about 20 kilometres down the Alpine Way from Thredbo, correct?‑‑‑Fifteen, probably 15.


Fifteen kilometres.  Thank you.  And Lake Crackenback is the scene of a large Novotel Resort, is that correct?‑‑‑Yes.


That's the Lake Crackenback Resort.  I see.  And are you aware of Snow Escape Holidays conducting property management within Thredbo for apartments?‑‑‑No.


Are you aware if Ray White Real Estate in Jindabyne conducts property management for apartments in Thredbo?‑‑‑No.


How about First National at Jindabyne?  It conducts property management in Thredbo, doesn't it?‑‑‑I'm not aware, again.


You're not aware?‑‑‑No.


And Absolute Alpine, it's a property management company that, amongst other things, deals with property management of apartments in Thredbo, correct?‑‑‑My understanding of Absolute Alpine is that they were a booking agent.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


I see.  And so they don't manage properties, they merely take bookings, is that correct?‑‑‑Well, that's my understanding.


I see?‑‑‑I'm not aware of them managing property.


And Main Range Real Estate, they are also a property management entity based in Jindabyne that manages properties within Thredbo, correct?‑‑‑I'm not aware of them managing properties in Thredbo.


And it's your expectation that if the application currently before the Commission is granted, your business will move under the Alpine Resorts Award, correct?‑‑‑Yes.


Would it be your expectation that any analogous business operating within Thredbo would also move under the Alpine Resorts Award?‑‑‑I think it would be up to them to decide.  I can't - - -


VICE PRESIDENT HATCHER:  Mr Harmer, the draft determination says what it says.


MR HARMER:  Yes.  I won't press that.


VICE PRESIDENT HATCHER:  This witness' opinion is not relevant.


MR HARMER:  Thank you, your Honour.  Mr Foster, what sort of notice to you get as to the end of the ski season?  When do you know that it's going to come to an end?‑‑‑Well, the official end is the – usually the closing weekend, October long weekend but sometimes it ends with a bang and other times it's a whimper and you might run out of snow, you know, half way through September, so you know, it can wind down substantially.


So, say because of lack of snow the seasons ends before the long weekend, when do you get to a point when you know that you're going to have to wind down before the long weekend?  Like, does it become apparent a week or two weeks in advance, or do you wake up one day and realise there's not enough snow left to have skiing?‑‑‑It can really happen overnight.


And what, you would give – at 16 you've got part-timers employed by the season, you would give the required period of notice to terminate?‑‑‑Yes.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


That would be, what, one week in most cases?‑‑‑Yes.


If I can just take that example of rapid downturn in the weather impacting your business, you've given at the back of your statement at annexure B, some statistics around the level to which the Lantern Apartments are utilised.  And if we take the top one there's a total stay nights per month figure, do you see that?‑‑‑Yes.


And it seems the strongest months are in July and August, correct?‑‑‑Yes.


Do people tend to book and come for a week at a time, or a number of days?  What's the pattern of booking?‑‑‑Well, it's quite varied but obviously the highest demand is for weekend stays.


Yes?‑‑‑And then some mid week stays for five nights, and then weekly stays after that.


In the chart at the bottom of annexure B, it seems that mid week stays are quieter, close to a hundred per cent, during July and some periods of August in 2016, do you see that?‑‑‑Yes.


And is that reflective of people staying for a week at a time, or a period during the week of a number of days?‑‑‑Both.


You mentioned that the weather can sometimes turn down overnight, do you recall that?  What happens to those people who are already booked in your apartments for a week, and the weather turns down overnight?  What do they do if they can't use the mountain for skiing?‑‑‑Well, they would look for other activities that, you know, they can do in the area and there's quite a bit range of them.


So staying in the Thredbo Alpine Village is, itself, aimed to be quite a pleasant experience in terms of the number of facilities available, correct?‑‑‑Yes.


And when there's an overnight downturn in the weather, such as that, the level of business to various operatives within Thredbo would potentially increase as people can't use the mountain, correct?‑‑‑Yes.


That would be particularly the case for those who are booked for periods of days at a time, correct?‑‑‑Yes.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


And your pattern of bookings and staying in Thredbo would be broadly indicative of what other apartment operators would experience in Thredbo, correct?‑‑‑I'm not – I'm not sure.  Our business is pretty successful.


Yes, okay, thank you.  I asked you some questions about the Raine & Horne franchise from Jindabyne operating in both Thredbo and Jindabyne.  Are you aware of any other businesses that operate in both Jindabyne and Thredbo?‑‑‑Well, I can't think of any.


Okay, than you.  And at paragraph 33 of your statement at subparagraph (d), you referred to discounted season passes for your employees?‑‑‑Yes.


And it's quite a material discount, from $1400 to $800, correct?‑‑‑Yes.


Is that facilitated by Kosciuszko Thredbo Pty Ltd, through the Thredbo Chamber of Commerce?‑‑‑Yes.


That's part of an aim by Kosciuszko Thredbo to facilitate the success of businesses operating within the village, correct?‑‑‑Yes.


And there's a synergy, isn't there, between the success of Kosciuszko Thredbo Resort and the success of the businesses that are attached to it within the village, correct?‑‑‑Yes.


Indeed, if Kosciuszko Thredbo Resort makes good snow, good quality snow and attracts through that product, your business and other businesses within the village benefit from that, don't they?‑‑‑Yes.


And if either in the winter or the summer season, Kosciuszko Thredbo sponsors certain events to attract people to the resort, both that resort and your business profit, is that correct, or prosper?‑‑‑Yes.


Examples of that in January would be, say, the National Fitness Week, or the National Jazz Festival conducted at Thredbo, correct?‑‑‑The Blues Festival in January, which is co-operatively organised by the Chamber of Commerce and Thredbo together.


Yes, there's a number of events that the Chamber of Commerce and Thredbo co-operate on to promote the whole resort and everyone within it, correct?‑‑‑Yes.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


Indeed, to take an extreme, if Kosciuszko Thredbo Pty Ltd ceased operating, your business and every other business in Thredbo would not survive, isn't that correct?‑‑‑Certainly not in the form we operate now.


And if it was forced to curtail the quantity of its ski lifting and snow making there would also be a corresponding drop in your business, you would expect?‑‑‑Yes.


In paragraph 54 you indicate that Thredbo Apartment management, which the apartment is managed by Kosciuszko Thredbo Pty Ltd, has about 60 apartments under management, correct?‑‑‑I don't know what the actual number is at the moment.


I see?‑‑‑Yes.


I see, sorry.  All right, I won't press that, thank you.  Perhaps, can I ask this.  Are you aware, is it significantly above 60 apartments?‑‑‑Once again, I'm not sure.  That number can change, you know, quite readily so - - -


Thank you.  You indicate you've been 27 years at Thredbo. In that time have you visited other resorts in the snow reason?‑‑‑Not really, no.  I'm quite busy over winter.


Your refer at paragraph 61 to the role of Kosciuszko Thredbo as a lessor until 2047, correct?‑‑‑Yes.


Sorry, can you just give an audible answer?‑‑‑Yes.


That's a unique role that Kosciuszko Thredbo holds, compared to any other resort in New South Wales, correct?‑‑‑I think so.


So you don't have actual knowledge?‑‑‑No.


Okay, thank you.  Have you ever considered utilising individual flexibility arrangements under the Hospitality Industry Award?‑‑‑What was that, sorry?


Under the Hospitality Industry Award there are, what's called, "Individual Flexibility arrangements."  Have you ever considered utilising those for your staff?‑‑‑Yes.

***        IAN FOSTER                                                                                                                            XXN MR HARMER


Have you utilised them for your staff?‑‑‑I have in the past, yes.


You have?‑‑‑Or not – well, not under the Hospitality Award.


Under which award was that?‑‑‑The award prior to that.


Was that in the hospitality sector?‑‑‑Yes.


VICE PRESIDENT HATCHER:  Do you mean AWA's?‑‑‑Yes.


MR HARMER:  Thank you.  And have you ever attempted to utilise enterprise bargaining in relation to your staff?‑‑‑No.


Thank you, your Honour, I have no further questions.



CROSS-EXAMINATION BY MR BRUNO                                      [10.59 PM]


MR BRUNO:  Thank you, your Honour.  Mr Foster, Lantern Apartments operates all year round?‑‑‑Yes.


And it's the case you've described in your statement that you have four permanent staff working for you all year round?‑‑‑Yes.


You've then described that there are some seasonal staff that are employed in the winter period?‑‑‑Mm-hm.


Which takes your staffing up to 25 people, I think.  With the term, "seasonal employee," or "seasonal staff," what are you referring to there?‑‑‑They would start work for me around the beginning of June and typically they would finish work some time in mid September to the end of September, early October.


I probably should have asked the question a different way.  Are these casual staff members or are they permanent staff members, or a combination of both?‑‑‑Largely casual.

***        IAN FOSTER                                                                                                                              XXN MR BRUNO


Yes.  So in terms of early termination if the ski season is a short one and it finishes quickly, early termination is not an issue for you with respect to the casual staff?‑‑‑No, it isn't.


At paragraph 32 of your statement you say that all of your seasonal workers in the snow season are people who want to spend their winter snow season skiing or snowboarding.  You would accept, just as a general proposition, that you don't know all of the factors which might motivate an employee to come to work for you?‑‑‑I would know most of them.


But not all of them, would you accept that?‑‑‑No.


In terms of the weekends for your business, is it the case that weekends have the highest occupancy rates?‑‑‑In my business, as you can see from the graphs it tends to be smoothed out but in terms of the resort itself, yes.


In terms of your business, by being smoothed out, are you saying – I might let you explain what you mean by that?‑‑‑Well, our occupancy rates obviously for July and August are quite high, right the way through.


Regardless of the day?‑‑‑Yes.


But if we take the other months for the ski season, so June and September, I understand they are, is it those months that weekends have the higher occupancy rates than, say, the weekdays?‑‑‑Yes.


Would you accept that at other times of the year it can be busy for your business?‑‑‑Yes, not specific times as you can see from my graph there.


Yes.  And those times – and does your business have increased patronage at periods of the time of the year to coincide with people going mountain-biking in the summer, for example?‑‑‑Yes.


In terms of living up in Thredbo are you able to make a general observation, since you have lived there for a while, whether it's a relatively expensive place, or cheap place in terms of day to day living costs?‑‑‑I'd say it's a bit more expensive.


And is that one of the reason why you do offer currently some employee incentives?‑‑‑Yes.

***        IAN FOSTER                                                                                                                              XXN MR BRUNO


At paragraph 43 of your witness statement you provide the view that – or your belief that staff prefer to work weekends rather than go up on the hill for skiing and snowboarding on a Saturday or Sunday.  Incidentally, is that a preference that you have?‑‑‑Personally?


Yes?‑‑‑It would be, yes.


Would you accept as a general proposition that although your staff might enjoy skiing and snowboarding, that they might have other interests outside of skiing and snowboarding?‑‑‑Yes.


And would you accept that there's a multitude of reasons why a staff member might say to you that they prefer working on a weekend as opposed to on a Monday or Tuesday?‑‑‑There could be.


Yes, and could one of those reasons be that you currently pay penalty rates on weekends in accordance with the Hospitality Award?‑‑‑Yes.


Also pursuant to that award is it the case that there's some penalty rates for night time work, so after 6 pm?‑‑‑Well, I don't have anybody working, sort of, after that time.


Yes.  In terms of the way your business operates, it's the case that you don't have many shifts on the Saturday available for your staff?‑‑‑Yes.


And that's because of the changeover days, being Friday and Sunday?‑‑‑Yes.


And in terms of Saturday, is it the case that the majority of your staff are free to do whatever they want?‑‑‑Yes.


I've got no further questions.


VICE PRESIDENT HATCHER:  Any re-examination?

RE-EXAMINATION BY MR SCOTT                                               [11.04 AM]

***        IAN FOSTER                                                                                                                               RXN MR SCOTT


MR SCOTT:  Yes, just very briefly, your Honour.  Mr Foster, can I take you to paragraph 33, 33(d) in particular.  You were asked a couple of questions about the discounted lift passes that you were able to provide for your staff?‑‑‑Mm.


And you indicated that the regular price for a season pass if $1400.  Is that always the case?‑‑‑No.  They have a special offer that's available right through the year, up to a – sort of a limited date before the seasons where anybody can buy a pass for roughly, I don't know what the exact number is, but about $800.


So if I was keen to go to the snow next season – it's now October/November, and I bought a season pass now for next year, how much would I be looking to pay?‑‑‑Roughly $800.


Thank you, nothing further.


VICE PRESIDENT HATCHER:  All right, thanks for your evidence, Mr Foster.  You're excused and you're free to leave.

<THE WITNESS WITHDREW                                                          [11.05 AM]


We will now take a morning tea adjournment and we'll resume in approximately 10 to 15 minutes.

SHORT ADJOURNMENT                                                                  [11.06 AM]

RESUMED                                                                                             [11.31 AM]


VICE PRESIDENT HATCHER:  Mr Scott, the next witness is Mr Leggett?


MR SCOTT:  That's correct, your Honour.  I call Mr Leggett. He's here in person today.




THE ASSOCIATE:  Please state your full name and address.


MR LEGGETT:  John Alan Leggett, (address supplied).

<JOHN ALAN LEGGETT, AFFIRMED                                          [11.31 AM]

***        IAN FOSTER                                                                                                                               RXN MR SCOTT

EXAMINATION-IN-CHIEF BY MR SCOTT                                  [11.31 AM]


MR SCOTT:  Mr Leggett, you've got a copy of your witness statement in front of you?‑‑‑I certainly do.


Can you confirm that the content of your statement is true and correct, to the best of your knowledge and belief?‑‑‑True and correct, yes.


I tender that statement, your Honour, but there have been some discussions and an agreement between the parties regarding a number of objections to the statement.  If I can take your Honour to the first one.  In respect of paragraph 14 of the statement, the second part of that paragraph is not pressed and it's that the strike-out should occur on the fourth line from the words, "So this line of thinking is more," and the remainder of that paragraph.




MR SCOTT:  The second objection is in relation to paragraph 19 and it's on the first line following the words, "Amongst themselves," from, "To allow someone who wants to go riding," should be struck out.




MR SCOTT:  And then the third issue was at paragraph 22.  Now that entire paragraph is not pressed but that is subject to being able to ask a couple of questions in chief in relation to that matter.




MR SCOTT:  So I'll do that now, or - - -


VICE PRESIDENT HATCHER:  Yes.  I will mark the statement.  So the statement of John Leggett dated 7 April 2017 will be marked exhibit L.



MR SCOTT:  Thank you.  Mr Leggett, you're based in Thredbo?‑‑‑Certainly.

***        JOHN ALAN LEGGETT                                                                                                                XN MR SCOTT


And the operator of the Alpine Lifts at Thredbo is Kosciuszko Thredbo Pty Ltd?‑‑‑Correct.


Are you aware in recent times of any purchasers that have been undertaken by Kosciuszko Thredbo, of any formerly privately owned businesses in the area?‑‑‑There are two cases that come to mind, straight away.


And what are those?‑‑‑Mountain Restaurants, particularly Merritts Mountain House on Mountainside, and also another business called Kareela Hutte.


Can you, sorry, repeat that second one for me?‑‑‑K-a-r-e-e-l-a, Kareela - - -


Yes?‑‑‑Hutte, H-u-t-t-e.


And that's on the mountain, as well?‑‑‑That's on the mountain, as well.


Thank you.  Nothing further, your Honour.


VICE PRESIDENT HATCHER:  So Kareela Hutte is a restaurant, is it?‑‑‑It's a restaurant on the mountain, yes.


Thank you.  Mr Harmer?  Sorry, just before you go on, when you say there's restaurants on the mountain, does that mean you have to get on a chairlift to get to them?‑‑‑They're ski in, ski out.  Thredbo is based on a Tyrolian model where the accommodation and main village is on one side of the creek and then the skiing is all on the other side of the creek.  And in a few instances there, there are some restaurants mountainside, and these two cases that I mentioned are both in that - - -


Thank you.

CROSS-EXAMINATION BY MR HARMER                                  [11.34 AM]


MR HARMER:  Hi, Mr Leggett.  Can you just let me know how long you've been in your current position?‑‑‑We've owned and operated Candlelight Lodge for about 14 years.


And which Modern Award do you apply to your operation?

***        JOHN ALAN LEGGETT                                                                                                           XXN MR HARMER


MR SCOTT:  Your Honour, can I just deal with this issue in relation to what's been discussed previously with the witnesses about questions of potential non compliance?  And it might be appropriate that the witness be cautioned in relation to the line of questioning if my friend is going to go down that path.


VICE PRESIDENT HATCHER:  All right.  Do we need to go down this path, Mr Harmer?  I mean, there's sufficient evidence before us to suggest that in the past there has been some confusion about award coverage which has been straight and out.  Do we need to keep on pursuing it on that point?


MR HARMER:  Given the concern raised, I won't press that either, thank you.




MR HARMER:  Sorry, just the Modern Award you currently apply?‑‑‑Yes.


Which one do you currently apply, sorry?‑‑‑The name escapes me right now but it's the award that Fair Work insisted that we use, and has penalty rates on weekends attached to it.


Yes, thank you?‑‑‑Mm-hm.


And why do you want to be covered by the Alpine Resorts Award?‑‑‑I think there's a lot of reasons, less administrative issues involved and costs associated with that, less angst between employees and employers and/or managers, over just working together on that.


So what is it about the Alpine Resorts Award which gives you those benefits?‑‑‑I think it's simpler and, yes, less administrative and, yes, it just – it seems fairer to me, and given the environment in Thredbo which is a totally different environment – the winter environment is totally different to a city style nine to five environment.


VICE PRESIDENT HATCHER:  So what administrative issues does it reduce or avoid?‑‑‑Well, bookkeeping and record keeping and, you know, the MYOB entry type of issues and timesheet collations and all sorts of things.


How would it do that?‑‑‑Well, there's a different pay rate applies and – about three different pay rates apply through the week.

***        JOHN ALAN LEGGETT                                                                                                           XXN MR HARMER


Right.  Now when you talked about angst between employees and managers, or less angst - - -?‑‑‑Yes.


How does that - - -?‑‑‑I have one example of about probably three or four years ago, I had a manager in who was, you know, doing the right thing on behalf of us as the employer, trying to reduce costs and cut labour costs and, you know, this manager was possibly going about his engagement with the staff over how much work they should do on weekends, possibly in the wrong manner, and of course, a little bit of friction between management and staff.  So, yes, I mean, that's one example.


Thank you.


MR HARMER:  You mentioned a reduction of costs?‑‑‑Yes.


Can you just elaborate on what you meant by that?‑‑‑Administrative costs, you know, bookkeeping, you know, data entry - - -


Weekend penalties?‑‑‑Yes, well, applying – having to calculate three different pay rates and enter them as separate lines into bookkeeping and, you know, be – it certainly would be easier if it was just one pay rate, a mean pay rate over a week, yes?


Yes, and the angst about working on weekends you referred to, did that relate to the issue of penalty rates, at all?‑‑‑It was, yes.  I mean, obviously the manager at the time was, again, as I said, trying to do the right thing by the employer and suggested to staff that they work less on weekends and – just the manner by which he went about it caused a bit of friction.


Thank you?‑‑‑It was good intentions but - - -


Thank you.  And the business you're currently operating in Thredbo, would it be true to say it's operationally profitable?‑‑‑Profitable business, yes.  Yes.


In relation to your accommodation services, do you consider yourself competitive or a competitor of Kosciuszko Thredbo Pty Ltd?‑‑‑We're all competitors there, yes.  I mean, there's a number of commercial lodges and – within Thredbo and we all compete.

***        JOHN ALAN LEGGETT                                                                                                           XXN MR HARMER


Thank you.  And that's been the case throughout the entire time you've been operating there?‑‑‑Certainly, yes.


Do you contend that the Alpine Resorts Award gives Kosciuszko Thredbo Pty Ltd any competitive advantage over you?‑‑‑That's a tough question, I – yes, look, I'm probably more interested in the less administrative side and you know, just being able to free up, yes, the opportunities for people to work when they wanted to work.  That's probably more – you know, it's more the operational issue I – from my side.


Thank you.  And in relation to the accommodation services that you provide at the Candlelight Lodge, is your role property management in relation to people accommodating the apartments?‑‑‑We have motel style rooms, offer breakfast and meal packages in with the accommodation, so it's a commercial lodge style as opposed to an apartment, yes.


So it's more akin to a hotel, as opposed to managing other persons' properties?‑‑‑Yes, it's a hotel/motel with a bar and restaurant attached to it.


You just gave some evidence about Kosciuszko Thredbo Pty Ltd acquiring two businesses on the mountain, do you recall that?‑‑‑I do.


Is it the case that in recent years, Kosciuszko Thredbo Pty Ltd has also acquired in the village, the bakery and the newsagency?‑‑‑Correct, yes.  Yes.


And they've done that because those businesses were not able to operate profitably through private operators, correct?‑‑‑I'm unaware of the reasons why Kosciuszko Thredbo took over those businesses.  It could be that reason.  It could be for that reason, it could be the operators were incompetent, or maybe the operators just needed to move and sold the business.  I'm not aware.


No further questions of this witness, thank you.


VICE PRESIDENT HATCHER:  Thank you.  Mr Bruno?

CROSS-EXAMINATION BY MR BRUNO                                      [11.44 AM]


MR BRUNO:  Thank you, your Honour.  Candlelight Lodge is a business that operates all year round?‑‑‑Correct.

***        JOHN ALAN LEGGETT                                                                                                             XXN MR BRUNO


And it's the case that you employ one other person in the non peak season?‑‑‑Correct.


Is it the case that that person is a permanent staff member or a casual staff member?‑‑‑No, we have two permanent staff through summer.


When you say there's two, is that in addition to yourself?‑‑‑Yes.  At times it's myself and someone else, and in other periods I have a manager working with me, yes.


In terms of the winter staff, you increase that to approximately ten, is that right?‑‑‑That's correct.


Do you use casual staff for that purpose?‑‑‑That's a casual arrangement over winter, an hourly situation, yes.


Would you accept that the staff members that you employ in the off peak season aren't in Thredbo to ski?‑‑‑The staff in summer, you said?




The two?‑‑‑Summer is a totally different environment in Thredbo to the winter environment, yes, so - - -


So would you accept that proposition that I put to you?‑‑‑Yes, skiing is not part of the equation, but yes, look, people are there to enjoy the mountain life.


And would you accept as a general proposition that even with your winter casual staff employees, that they might have interests outside of skiing?‑‑‑For the summer staff, you said?


No, for the casual people you employ in winter?‑‑‑Casual.  Yes.


Would you accept that they'd have interests outside of skiing?‑‑‑I'm sure they have so, before they arrive at Thredbo.  I mean, certainly whilst they're in Thredbo they're focused on skiing.

***        JOHN ALAN LEGGETT                                                                                                             XXN MR BRUNO


At paragraph 12 of your statement you provide the belief that historically the people you have employed during the ski season are looking to work in Thredbo, that they tend to be people who want to go skiing or snowing(sic) in the ski season itself.  You also accept though that some people wish to come to Thredbo to work and save money?‑‑‑Yes, that could be the case for some staff but we've witnessed the majority of the reason for someone to come to work - - -


You'd accept as a general proposition, wouldn't you, that you don't know, as an employer, all of the motivating factors that someone might come to work for you?‑‑‑Yes, but through experience one gets a good idea of their intentions through interviews and interview processes before winter.


But do you accept that you couldn't know all of the motivating factors?‑‑‑Yes, quite possible, yes.


In terms of occupancy rates, in the winter ski season do you find that the accommodation business has the highest of the occupancy rates on the weekends, as opposed to week days?‑‑‑Occupancy is higher on weekends, and rooms do fill faster and earlier.


Is that because people are travelling to Thredbo for weekend stays?‑‑‑Correct.  We have a changeover on a Friday and a Sunday in most cases and we have a mid week group coming down through the week who've taken holidays from the city, and we also have weekend people arriving who leave Sydney on a Friday afternoon after work and stay till Sunday.


And when we look at the bar and restaurant, does it follow, as well, that the revenue for the business on weekends are proportionally as higher than on the week days?‑‑‑Friday and Saturday nights are generally busy nights in the restaurant, in the bar and restaurant.


In terms of other busy times of the year for the Candlelight Lodge, what are they, apart from the winter ski season?‑‑‑Obviously festivals through summer and mountain biking events, mainly weekends in these cases, and also Christmas and New Year is a busy period, and Easter and school holidays in April.


In terms of occupancy rates in those particular periods are you able to describe them?  Are they full, or are they half full, or - - -?‑‑‑Weekends are becoming quite – certainly in those cases I mentioned, yes, occupancy is quite high.  Weekends, I can see as higher.  Midweek, very – quite a low occupancy, yes.

***        JOHN ALAN LEGGETT                                                                                                             XXN MR BRUNO


In terms of living up in Thredbo are you able to comment on whether it's relatively expensive or not to live there, in terms of costs of living?‑‑‑Certainly costs are higher there, you know, grocery costs, restaurant/bar costs, you know, transport to the mountains is a big factor for us, electricity, being in winter.


Is that why you offer some of your employees some incentives, in terms of at paragraph 21 you provide some help with obtaining a discounted or free ski pass?‑‑‑Mm-hm.


Is that - - -?‑‑‑Yes, that's a part of attracting good staff.  You know, we've got competitors in the village and we want to attract good staff to – for good experiences for our guests.


And at paragraph 34 you say that you help employees by offering food.  Is it because of the cost of food that you do that?‑‑‑We have a live-in environment where all of our staff in winter live on site in shared accommodation in our building, and part of that is we offer accommodation and meals, as well.


If I can take you to paragraphs 15 to 19 of your witness statement, have you got that in front of you - - -?‑‑‑I've got that in front of me.


Between those paragraphs of your witness statement you provide your belief that staff prefer to work week nights so they can spend the day skiing, and you also say that staff tend to work a lot on the weekends when the mountain is very busy with day-trippers and weekenders.  Would you accept as a general proposition that there are a multitude of reasons why staff might like working on either week nights or week days, apart from the issue of skiing?‑‑‑A main motivating force for people working there in winter is their ability to get out skiing as much as possible.  And there are certainly others that have different objectives but it's normally a minority.


It's the case that your business offers penalty rates pursuant to the award for both the weekend work and night time work?‑‑‑We offer a higher rate of pay on weekends, yes.


Do you think that might be a motivating factor in terms of staff preferences?‑‑‑Certainly in the past, before penalty rates, it hasn't been a factor but nothing's really changed.


There's no further questions.

***        JOHN ALAN LEGGETT                                                                                                             XXN MR BRUNO


VICE PRESIDENT HATCHER:  Any re-examination?

RE-EXAMINATION BY MR SCOTT                                               [11.51 AM]


MR SCOTT:  Yes, just one question.  Mr Leggett, just touching on the answer that you've just immediately given – just one moment – sorry, Mr Leggett, no further questions, your Honour.


VICE PRESIDENT HATCHER:  All right, thank you for your evidence, Mr Leggett.  You are excused and you're free to go.

<THE WITNESS WITHDREW                                                          [11.52 AM]


Was there a missing witness, Mr Scott or?


MR SCOTT:  There is, your Honour.  Mr Owen, who was scheduled to give evidence next, unfortunately despite out attempts, he's not here today and - - -


VICE PRESIDENT HATCHER:  Is he just unavailable or is he on a roundabout somewhere, or?


MR SCOTT:  I don't think it's unavailable, I think it's simply that we haven't been able to persuade him to come and give evidence.




MR SCOTT:  Obviously we've filed the witness statement.  In an ideal world we'd like to rely on that but I understand my friend's no doubt had some cross-examination of Mr Owen and there may be an objection, given that he's not here, to that statement.  But as I've said, ideally we'd like to rely on that statement.


VICE PRESIDENT HATCHER:  Mr Harmer and Mr Bruno, are there any particular parts of that statement that are factually in contest?


MR BRUNO:  Can I just be permitted to review my cross-examination quickly?



***        JOHN ALAN LEGGETT                                                                                                              RXN MR SCOTT


MR SCOTT:  Your Honour, it's convenient at the moment and it's also appropriate for me to indicate that in relation to tomorrow's schedule we're in a similar difficulty with two witnesses, Jason Moon and Nick Cook, who again, despite our attempts appear unlikely to attend tomorrow to give evidence in Melbourne.  It's just unclear what the position is in respect of those witnesses.  Now maybe tomorrow there will be some development and they'll show up but at the moment it appears unlikely.  So I just raise that now while we're dealing with Mr Owen.


VICE PRESIDENT HATCHER:  Will you know the position by the end of the day?


MR SCOTT:  Unless something happens, I think the position will be it doesn't appear that they're attending.  So unless we receive a phone call saying, "See you tomorrow," I suspect the position is that we'll be in the same position as we are now with Mr Owen.


VICE PRESIDENT HATCHER:  All right, so Mr Scott, just to be clear, this is not an issue about travelling to Melbourne, this is an issue about giving – I mean, does it resolve anything if they're off the facility, giving evidence by telephone?


MR SCOTT:  I understand that Jason Moon is travelling and because he's travelling we've had very – we've been unsuccessful really to communicate at all with him in the last few days, or the last week.




MR SCOTT:  So his MIA, if you like.  Mr Cook, I think, despite out best endeavours to persuade him to attend, I think the position is that he is unwilling to do that.


DEPUTY PRESIDENT DEAN:  So again, is it the attendance or is it the giving of the evidence?


MR SCOTT:  I suspect it's the giving of the evidence.




MR SCOTT:  And I suspect in relation to Mr Cook, if there was some accommodation for telephoning I suspect the response is the same, which is, I'm not keen to participate, despite our attempts with – in respect to Mr Moon, he's MIA.


VICE PRESIDENT HATCHER:  All right.  While we've had that diversion, Mr Harmer, is there anything in Mr Owen's statement as it stands that's factually in contest?


MR HARMER:  Your Honour, could I just seek an indulgence, just on all three witnesses.  Could we address all three tomorrow?  I'm not trying to be difficult, I just want to reflect on all three statements.  It may be we can let all three go in and not trouble the Tribunal but I'd just like to reflect on that and seek some instructions, and if it's all right we can deal with it, hopefully, in a job lot tomorrow morning.


VICE PRESIDENT HATCHER:  All right.  Can we get Mr Gregg(sic) in earlier rather than later?


MR SCOTT:  I think we can – well, subject to being able to technologically make that happen.  I understand that we've – we've spoken to him and he is available earlier than 2.00.


VICE PRESIDENT HATCHER:  All right, we'll just take a short adjournment to organise Mr Gregg's attendance by telephone and we'll resume as soon as that's ready.

SHORT ADJOURNMENT                                                                  [11.57 AM]

RESUMED                                                                                             [12.01 PM]


VICE PRESIDENT HATCHER:  All right, so Mr Quinn, are you on the phone?


MR QUINN:  Yes, I am.


VICE PRESIDENT HATCHER:  All right, we're just going to administer the oath or affirmation to you.


THE ASSOCIATE:  Could you please state your full name and address.


MR QUINN:  Gregg Justin Quinn, (address supplied).

<GREGG JUSTIN QUINN, AFFIRMED                                          [12.02 PM]

EXAMINATION-IN-CHIEF BY MR SCOTT                                  [12.02 PM]


Mr Scott.


MR SCOTT:  Thank you, your Honour.  Mr Quinn, can you hear me okay?‑‑‑I can, thank you.


Kyle Scott from Australian Business Lawyers, just going to ask you a couple of questions.  Have you got a copy of your witness statement in front of you?‑‑‑I do.


And can you confirm that the contents of that statement are true and correct, to the best of your knowledge and belief?‑‑‑I can.


Your Honour, I tender that statement.  Again there's a couple of resolved objections which involve certain paragraphs not being pressed.




MR SCOTT:  The first relates to paragraph 32, and I understand it's the first sentence that's not pressed.


VICE PRESIDENT HATCHER:  All right.  So strike out the first sentence of paragraph 32.


MR SCOTT:  And then paragraph 40, the entire paragraph is not pressed.


VICE PRESIDENT HATCHER:  Right, so we strike out paragraph 40.


MR SCOTT:  I otherwise tender that.


VICE PRESIDENT HATCHER:  All right.  With those modifications the statement of Gregg Quinn made on 12 April 2017 will be marked Exhibit M.



MR SCOTT:  If the Commission pleases.  Mr Quinn, you're a director of Chalets Thredbo Pty Ltd?‑‑‑Yes, I am.

***        GREGG JUSTIN QUINN                                                                                                              XN MR SCOTT


And you operate that chalet out of Thredbo?‑‑‑I do.


How long have you operated that business?‑‑‑Part of the business I have operated for over ten years.  The current entity, I have operated it out of – for the last six years.


Thank you.  Can I take you to paragraph 18 of your statement, please?‑‑‑Yes.


You indicate there that the ski runs on the weekends are that much busier than during the week and you say, "As a result, my employees often prefer to work on weekends so that they can ski during the week when it's less busy on the slopes and in the ski lift lines."  How do you know that?‑‑‑By just observation, the observations of the line on a Saturday morning, the car park being full, et cetera, et cetera, and then the knowledge that a lot of employees refuse to particularly ski on Saturday because of the length of the line.


Thank you.  Nothing further from me, Mr Quinn, thank you?‑‑‑Thank you.

CROSS-EXAMINATION BY MR HARMER                                   [12.05 PM]


MR HARMER:  Thank you, Mr Quinn.  Just let me know if you have any difficulty hearing me, please?‑‑‑A little bit hard.  I can just hear you.


VICE PRESIDENT HATCHER:  You're just going to have to speak louder, Mr Harmer.


MR HARMER:  Yes.  Thanks, your Honour.   Mr Quinn, you've just mentioned operating your business from Thredbo, I think you said in part, for the last ten years.  Is that correct?‑‑‑That's correct.


And you said, under the current entity for the last six years, correct?‑‑‑Correct.


What was the previous entity you operated under?‑‑‑Visit Snowy Mountains operated under Mountain High Real Estate.


I see?‑‑‑And then they were combined into Chalet Thredbo six years ago when that entity was created.

***        GREGG JUSTIN QUINN                                                                                                         XXN MR HARMER


And all the businesses you mention at paragraph 2 of your statement, there's three business names referred to, they all operate from the one corporate entity, Chalets Thredbo Pty Ltd, correct?‑‑‑Yes, they do.


And the office of that corporate entity is based in Thredbo, correct?‑‑‑Yes, it is.


On your website there's an entry which reads as follows:-  "We have accommodation for the entire region, including Thredbo, Perisher Blue, Cooma, Smiggins Holes and Jindabyne."  Is that your understanding of the scope of the business?‑‑‑Correct.  So we only manage properties which are physically in Thredbo but if we have overflow inquiries and we can't accommodate them, then sometimes we accommodate them around the Snowy Mountain area, as well.


How do you do that, by arrangement with other operators, or do you do that directly?‑‑‑Arrangements with other operators.


What's the nature of those arrangements?‑‑‑A commission based structure.


So do you have agreed referral arrangements with certain, for example, property management entities operating out of Jindabyne?‑‑‑Out of Jindabyne and out of Perisher, correct.


And you mention at paragraph 8 of your statement that you undertake some property management services for the Thredbo Alpine Apartments, do you see that?‑‑‑Cleaning services.


Yes, and so Kosciuszko Thredbo Pty Ltd, in that context, is a customer of yours, correct?‑‑‑Yes, they are.


Okay?‑‑‑Sorry, no.  No, not in that context.  The cleaning services are for the Thredbo & Alpine Apartment Body Corporate Association, and that association and that association is not owned by Kosciuszko Thredbo.


I see, thank you.  And which Modern Award do you currently apply to your business?‑‑‑Say that again, sorry?


Which Modern Award do you currently apply to your - - -


VICE PRESIDENT HATCHER:  Paragraph 11, Mr Harmer.

***        GREGG JUSTIN QUINN                                                                                                         XXN MR HARMER


MR HARMER:  Sorry, paragraph 11 you indicate that you're applying the Hospitality Industry Award, correct?‑‑‑That is correct.


And have you applied that throughout, or since 2010?‑‑‑I have, yes.


It's your contention that you want to be covered by the Alpine Resorts Award, correct?‑‑‑That is correct.


Can you inform the Commission of why you want to be covered by that award?‑‑‑The flexibility that the Resort Award would provide me would enable me to employ more people for more hours, and potentially change my business because currently I only generally employ people on Fridays and Sundays because (indistinct) guests to arrive and depart on Fridays and Sundays.  Guests prefer to have more flexibility than what I'm currently providing but I can't provide the guests with more flexibility because of the restrictions I have employing staff for cleaning services.


And the business that you operate out of Thredbo is profitable each year?‑‑‑Say that again, I – sorry, is - - -


Sorry, is the business that you operate out of Thredbo profitable each year?‑‑‑Yes, it is.


And is one of your aims in going under the Alpine Resorts Award to increase your profitability?‑‑‑Obviously, looking at profitability across the board is always something we do.  The direct benefit of me going with the Alpine Resort would be to change my booking restrictions and booking rules to allow more flexible booking times for guests, which then corresponds to, if I do that then I need more cleaners for more days, and currently I'm unable to do that under the Hospitality Award.


VICE PRESIDENT HATCHER:  Sorry, Mr Quinn, why is that?  What prevents you from doing that under the Hospitality Award?‑‑‑Well, just from a profitability point of view.  My owners pay me X amount of dollars to – a set amount for every clean and currently it's not profitable to increase the number of days which I employ the cleaners for, which then – it doesn't allow me to entertain taking – in relation to my booking conditions.

***        GREGG JUSTIN QUINN                                                                                                         XXN MR HARMER


So the Alpine Resorts Award, because you would be able to pay the employees less on Fridays and Sundays, you could then use the saving to use – employ for more hours on other days, is that the logic of it?‑‑‑No, the logic of it is that if I'm – if I'm able to set the wages for my employees I can come up with a business strategy model which enables me to accept everyday check-ins, where at the moment I am unable to do that.


Yes, well, I'm just trying to work out what the changed model would be.  That is, why don't - - -?‑‑‑The changed model would - - -


Yes, go on?‑‑‑So that the changed model would be that if I can accept bookings, arriving and departures on other days rather than Fridays and Sundays, it would mean that I would employ more cleaners and that would then provide guest satisfaction.


I understand that part of it but what is it about the Alpine Resorts Award that facilitates that outcome, which you can't currently do under the Hospitality Award?‑‑‑From my reading of the Alpine Award it would enable me to be more flexible with the days which I employ people, as well as times, et cetera.


Are these employees casuals?‑‑‑Yes, they are.


All right, thank you.


MR HARMER:  Mr Quinn, you've referred in paragraph 41 to Kosciuszko Thredbo Pty Ltd as one of your direct competitors, do you see that?‑‑‑Correct.


And is it your contention that the Alpine Resorts Award gives a competitive advantage to that entity over your business?‑‑‑Absolutely.


Again, can you just explain why that's the case, in relation to Kosciuszko Thredbo Pty Ltd?‑‑‑The apartment and operation that they conduct, Thredbo Apartment Management, manages 60 apartments which directly compete against the apartments that I manage.  The conditions that I can employ my staff under are completely different to what they are able to, which they are able to offer their employees longer – more hours, more days during the week because they're offering their guests any day check-in, rather than just a Friday and a Sunday, so, yes, my landlords are competing directly against me for those guests, and employees are in – their employees are under a completely different award structure.


Yes, you'd understand that the Kosciuszko Thredbo Pty Ltd business is extremely diverse compared to your own?‑‑‑Correct.

***        GREGG JUSTIN QUINN                                                                                                         XXN MR HARMER


And property management services are only a small portion of the Kosciuszko Thredbo business, correct?‑‑‑Yes and no.  Obviously, Thredbo in apartment management is a completely different entity.  It has a New South Wales real estate licence, like I do.  So that division, if you minus off the food and beverage and the lift operations, is almost identical to mine.  So those people who are employed by Thredbo in apartment management are doing exactly the same services of my employees.  So in that context it's the same, rather than being so more diverse.


But that division is part of the consolidated business and accounts of the one entity, isn't it?‑‑‑It is, correct.


The issue of property management businesses in Jindabyne, can I just ask you this.  You're aware of the operation of Raine & Horne in Thredbo, sorry?‑‑‑To some extent, yes.


You're aware that that's a franchise that also operates in Jindabyne?‑‑‑Correct.


They'd be a competitor of yours in relation to property management services, correct?‑‑‑Yes, they would.


You're also aware that Forbes Stynes Real State operates out of Lake Crackenback and Jindabyne, correct?‑‑‑Correct.


They trade as the Thredbo Ski Accommodation Service, correct?‑‑‑Correct.


And they also are a competitor of yours, correct?‑‑‑Yes, they are.


Snow Escape Holidays is another accommodation service run out of Jindabyne that provides services into Thredbo, correct?‑‑‑Not to my knowledge.


First National in Jindabyne provides accommodation services in Thredbo, correct?‑‑‑Not to my knowledge.


Absolute Alpine provides accommodation services into Thredbo from Jindabyne, correct?‑‑‑Not to my knowledge.

***        GREGG JUSTIN QUINN                                                                                                         XXN MR HARMER


And Main Range Real Estate provides accommodation services into Thredbo from Jindabyne, correct?‑‑‑Not to my knowledge.  The – all those companies you just mentioned provide accommodation for predominantly or solely, only in Jindabyne.


Well, they all deal with accommodation provided in Thredbo, don't they?‑‑‑Yes, but those are not in the context of a property manager, they do it in the context of a travel agent/wholesaler.


Okay, thank you?‑‑‑So they're just filling apartments in Thredbo, rather than managing any of them.


That's not the case with Raine & Horne, however, is it?‑‑‑That's not the case with Raine & Horne, correct.


Okay, thank you.  And if Kosciuszko Thredbo Pty Ltd makes good snow or conducts events that attracts people to the Thredbo Resort, that benefits your business, correct?‑‑‑Yes, it does.


If, on the other hand, the Kosciuszko Thredbo Pty Ltd business was to decline in terms of its ability to - - -?‑‑‑Sorry, I can't hear you.


I apologise.  If, however, that the Kosciuszko Thredbo business was to decline in its ability to offer snow and lift services, that would adversely impact your business, correct?‑‑‑Correct, but that's why I pay rent.  It's their job to promote and provide people to the area.


Yes, so that they promote the area to assist your business and all the other businesses at the village, correct?‑‑‑Correct, in a roundabout way.  But I promote the area and the skiing and accommodation for my own purposes which would similarly have benefits to Kosciuszko Thredbo, as well.


And are you a member of the Thredbo Chamber of Commerce?‑‑‑Yes, I am.


What's the relationship between that chamber and Kosciuszko Thredbo Pty Ltd?‑‑‑We – Kosciuszko Thredbo is not a member but they are a supporter.  We collectively put on events, provide services and resources for such events, as well as provide data base services for promoting all events which occur in Thredbo.


Thank you.  And under the Hospitality Industry General Award, have you ever attempted to implement individual flexibility agreements?‑‑‑No, I have not.

***        GREGG JUSTIN QUINN                                                                                                         XXN MR HARMER


Have you ever attempted enterprise bargaining in your business?‑‑‑No, I have not.


Thank you, I have no further questions.



CROSS-EXAMINATION BY MR BRUNO                                      [12.21 PM]


MR BRUNO:  Thank you, your Honour.  Mr Quinn, can you hear me?‑‑‑I can, thank you.


And you still have your statement in front of you?‑‑‑Yes, I do.


It's the case, Mr Quin, that your business, Chalet Thredbo Pty Ltd, operates all the year?‑‑‑Correct.


And in terms of meeting the demands of increased customer patronage, it's the case that you use casual staff members to assist?‑‑‑That is correct.


In the winter, you increase your casuals to 25?‑‑‑That is correct.


But if we go back to summer, you have five casuals?‑‑‑Yes.


And you also, all year round, have eight full-timers?‑‑‑That is correct.


With those casuals in the summer and the full-timers, they're all locals?‑‑‑The people for – the employees that are in summer, are either locals and/or seasonal workers who have decided to settle in the area.


Just for the summer?‑‑‑Generally it would be a year round settlement.


In terms of staff interests, you'd accept that the staff members that you employ in the summer period aren't there to ski?‑‑‑Correct.

***        GREGG JUSTIN QUINN                                                                                                           XXN MR BRUNO


You say in relation to your 25 casuals that you employ, that usually all of them are travellers that come to Thredbo to work or ski.  By saying that, do you accept therefore that some aren't?‑‑‑That some aren't - - -


Yes?‑‑‑Here just purely to ski?


Yes, that's right?‑‑‑I – yes, I'm sure some aren't but there would be – there would be over 95 per cent of the case that people were here for skiing and boarding.


And even with your casual staff who do like skiing, you'd accept that like anyone, they've got interests outside of that?‑‑‑Correct, but during the winter period there is limited scope for anything else but those activities.


Because they're either working - - -?‑‑‑Because the area's shut down that are offering those services.


Yes but they're either working for you or they're skiing, is that the case?‑‑‑Correct.


In terms of occupancy rates, can I ask you about them.  In the winter ski season do you find that the accommodation business has the highest occupancy rates on the weekends?‑‑‑Correct.


And therefore, proportionally on the weekends, does Chalet Thredbo's revenue – is it higher, sorry, than on a week day?‑‑‑No, it's the same.


How is that?‑‑‑Well, the nightly rates don't go up over a weekend.  So predominantly our guests say for – predominantly they stay for seven nights, so the nightly rate they pay is the same, no matter whether or not they're staying on a week day or a weekend.


So are you saying that – correct me if I've got this wrong, but the occupancy rates are evenly distributed across each day, whether it's a week day or a weekend day?‑‑‑No, the weekends would certainly be a higher occupancy, then a week day but the rates don't change.


So it's the case then, on a Saturday compared to a Monday, that you have higher revenue on a Saturday than on a Monday?‑‑‑That is correct.

***        GREGG JUSTIN QUINN                                                                                                           XXN MR BRUNO


And if I look at Sunday, it's the case that on a Sunday, compared to a Tuesday, you would have higher revenue on the Sunday?‑‑‑Correct.


In terms of other times of the year, it's the case that your business has some good occupancy rates in January, is that the case?‑‑‑Correct.


And that can get up to 80 per cent?‑‑‑Correct.


Are you experiencing that Thredbo is becoming popular with other activities?‑‑‑Yes, definitely at the moment with mountain-biking, but Thredbo Village has been operating as a year round resort of over 30 years, so the additional activity that we've sourced over that time has been – changes from time to time.  So at the moment it's related to mountain-biking but 30 years ago we started music festivals, a blues and jazz festival which was started by the Thredbo Chamber of Commerce to attract and create some business.  So it was actually the members of the Thredbo community who started that process some 30 years ago.


Your business is able to cater for these other businesses?‑‑‑Yes, we are.


In terms of living up in Thredbo, are you able to comment on whether it's relatively expensive or not, in terms of day to day living costs?‑‑‑It would be higher than in the city, I would say.


Is that why you assist staff by offering them with assistance in obtaining discounted ski passes?‑‑‑Correct.


At paragraph 18 of your statement, and paragraph 39(c), I want to take you to both of them – I'll deal firstly with paragraph 18, in that paragraph you provide the belief that staff prefer to work on weekends, so they can ski during the week when it's less busy on the slopes and in the ski lift lines?‑‑‑Correct.


And if I can then get you to move to paragraph 39(c), you say that you've had conversations with employees where they have told you they prefer to ski and board during the week when there are less people on the slopes?‑‑‑Yes.


Would you accept that there are a multitude of reasons why a staff member might prefer to work during weekends for you, apart from the issue of what they've told you about wanting to ski on the weekdays instead?‑‑‑The only conversation I've had with employees specifically to that statement is that they preferred not to ski on a Saturday because of the long lift lines.

***        GREGG JUSTIN QUINN                                                                                                           XXN MR BRUNO


It's the case that your business can provide penalty rates on the weekend under the Hospitality Award for workers who work on weekends?‑‑‑Correct.


So you'd accept that that has to be a motivating factor for staff?‑‑‑No, I pay a – I pay a flat rate for every day of the week.


But I thought you'd accepted that you pay penalty rates on the weekend, or did I misunderstand that?‑‑‑My – my flat rate includes the penalty rates for the weekend.


So you pay a higher rate, more than what the award offers?‑‑‑That is correct and the main – the significant reason why I do that is because I am directly competing against Kosciuszko Thredbo through Thredbo Apartment Management, who pay their staff less but then give them bonuses.  For instance, additional season passes, discounted food at their food outlets, et cetera, et cetera.  And so the only way that I can attract staff is by paying this higher rate, and staff – I lose staff every year because of the additional bonuses that people perceive in relation to season ski passes and the discounted food, et cetera.


Can I ask you, that flat rate that you currently pay your staff, what is it?‑‑‑$29 an hour.


And do you know what the penalty rate is for a Sunday?‑‑‑I think it's 1.5, or 1.75.  I don't have it in front of me.


In terms of the issue that you've raised about difficulties with the way that you currently – the difficulties your business has with renting out accommodation on days other than Friday and Sunday - - -?‑‑‑Yes.


It's the case that your business operates by renting out someone else's property?‑‑‑Correct.  I've got a – all my chalet's are privately owned.


So I think you said in your evidence earlier that you derive a commission from the property owners for that?‑‑‑That is correct.


And you pass on, is this right, a cleaning cost?‑‑‑That is correct.


So if - - -?‑‑‑A fixed – a fixed cleaning cost.

***        GREGG JUSTIN QUINN                                                                                                           XXN MR BRUNO


Yes.  If someone called up on a Monday and said, I'd like to stay in Thredbo Village for a few days, couldn't you just pick up the phone and say to the private owner of that particular accommodation, look, I've got someone who wants to rent your property out, I'm going to charge you a slightly higher cleaning fee to be able to do that – couldn't you just do that?‑‑‑I don't have that amount of skill.  Obviously if you'd like to work for me and do that for me, that'd be great.


But you'd accept that it's a business decision of the owners not to pay a higher cleaning cost?‑‑‑But my owners refuse - they already think the cleaning costs that we charge are exorbitant and they do not entertain paying anything more, even if it was to attract another guest.


So instead they lose the profit that they could derive from their investment on those particular days?‑‑‑Correct.


I don't have any further questions.


VICE PRESIDENT HATCHER:  Mr Scott, any re-examination?

RE-EXAMINATION BY MR SCOTT                                               [12.31 PM]


MR SCOTT:  Yes, just a couple.


VICE PRESIDENT HATCHER:  Any assistance you can give on this issue would be welcome.


MR SCOTT:  Mr Quinn, it's Kyle Scott here.  I'm just going to ask you a couple of questions, if I can.  Correct me if I'm wrong but I thought your evidence earlier was that you don't employ staff on Saturdays, is that right?‑‑‑That is correct.


Why is that?‑‑‑Because we have an arrival and departures on Fridays and Sundays only, which means that we don't require staff to work on a Saturday.


And why is it that there's only arrival/departure days being Friday and Sunday?‑‑‑Because, because we can only employ staff on those days it means that we ask our guests to only arrive on those days, as well.

***        GREGG JUSTIN QUINN                                                                                                            RXN MR SCOTT


I think earlier you were asked questions about your competitor, which was Thredbo Alpine Management, or one of your competitors, and your evidence was that they offer any day check-ins, is that right?‑‑‑That's correct.


Is that something that you would be interested in doing?‑‑‑Absolutely.


You referred to changing your booking rules earlier.  Is that the way in which you would go about trying to offer any day check-in?‑‑‑That is correct.


If you were to offer any day check-in, presumably that might involve then having to employ someone on Saturday if there was – say, a cleaner for example, if someone was checking out on Saturday?‑‑‑That is correct.


Just a moment, Mr Quinn.  Could I ask you, in relation to Saturdays, do the penalty rates that exist in the Hospitality Award on Saturdays, does that have any influence over the decision not to employ staff on Saturdays?‑‑‑No, it doesn't.


Okay, so I guess the question is, why is it that you have Friday and Sunday check-in, check-out, and why is it that you don't employ staff on Saturdays?‑‑‑The Friday/Sunday revolves around the fact that most guests come for – or include – their holiday includes a weekend, because of their working week.  There is obviously opportunities for us to offer mid week stays, or even more mid week stays.  That would revolve around me employing more cleaners for more hours during the week to cover off those shifts.  So to me, Saturday is probably the same as anything during the week, so – and would have no specific influence as to the decisions I would make.


All right.  You were asked some questions about real estate agencies based in Jindabyne.  And your response to one of those questions, to paraphrase, was that there was a difference between selling a room, and acting as a property manager.  Can you explain what that difference is?‑‑‑So a property manager is the person who manages the guests, so their person located in Thredbo who organises the employees to clean the properties.  The property manager is the person who organises the linen and employs people to manage the linen process inside Thredbo, as well as whenever the guest is in-house, where a wholesaler or a travel agent is someone who just books the holiday and charges them, and charges a commission for that process.


And so to your knowledge of those real estate agencies that were referred to earlier, based in Jindabyne, is it correct that none of those offer property management services in Thredbo?‑‑‑They don't, correct.

***        GREGG JUSTIN QUINN                                                                                                            RXN MR SCOTT


Thank you?‑‑‑And they only employ people from and in Jindabyne, not in Thredbo.


Thank you.  They were my questions, Mr Quinn, thanks very much.


VICE PRESIDENT HATCHER:  All right, thank you, very much, Mr Quinn.  You're now excused, which means you can simply hang up the phone.

<THE WITNESS WITHDREW                                                          [12.37 PM]


Mr Harmer, can I ask you a question?




VICE PRESIDENT HATCHER:  If Kosciuszko Thredbo Pty Ltd bought, say, a hotel resort in Cairns or Port Douglas, what would prevent it from applying the Alpine Resorts Award to its employees?


MR HARMER:  Purely hypothetical because it would be owned through Rydges Group which is part of Amalgamated Holdings, which is the holding entity, so that scenario wouldn't play out.  But in terms of the hypothetical you raise, your Honour - - -


VICE PRESIDENT HATCHER:  Or acted as the employer?


MR HARMER:  I'm sorry, you're - - -


VICE PRESIDENT HATCHER:  Or simply acted as the employer for the resort?


MR HARMER:  Yes.  Look, strictly - - -


VICE PRESIDENT HATCHER:  So for example, entered into a contract to operate a hotel.  What would prevent it from applying this award?


MR HARMER:  As I would understand the award at present, I don't think there's any limitation geographically on the scope of an employer based within the resort, and the reach of the award.

***        GREGG JUSTIN QUINN                                                                                                            RXN MR SCOTT


VICE PRESIDENT HATCHER:  Because it's called the Alpine Resorts Award but it's not confined to employment in alpine resorts.


MR HARMER:  No, it's based around ski lift operators and their operations, and as far as I'm aware, your Honour, that does involve some operations in Jindabyne, in the case of Perisher and Thredbo, and some in Dinner Plains, in the case of Mount Hotham, so there is a reach but that's about the extent of it.


VICE PRESIDENT HATCHER:  Right.  All right, well, we might return to that.


MR HARMER:  Thank you.


VICE PRESIDENT HATCHER:  So just in terms of the timetable, if we take an early luncheon adjournment and resume at 1.45, we can then simply hear the submissions that are scheduled for this afternoon.  Mr Scott and Mr Izzo, given the difficulty you had with two of your witnesses tomorrow morning is it possible that we could move Mr Williams and Ms Clark into the morning?  Or at least make themselves available?


MR SCOTT:  I think the position with Mr Williams, is he may be flexible.  I think from memory, Ms Clark needed to be on in the afternoon.  I can double check that during the lunch break and we can confirm that after lunch, but I think there may be some flexibility with one but I don't think the other.


VICE PRESIDENT HATCHER:  All right, well in any event does that mean that after we finish those witnesses tomorrow we can move straight to closing submissions?


MR SCOTT:  I can't see any reason why we wouldn't be able to.


VICE PRESIDENT HATCHER:  How long do the parties think the closing submissions will take in totality?  I mean, we've already had written submissions and opening submissions.


MR SCOTT:  I think Mr Izzo and I were sharing the load with our closing submissions and I think we might be a couple of hours.


VICE PRESIDENT HATCHER:  A couple of hours, all right.  Mr Harmer, how long do you think you're going to be?


MR HARMER:  I think about an hour, your Honour.




MR BRUNO:  I would like address the Commission in relation to the section 134 criteria, the SDA's submissions haven't gone into that detail – half an hour to an hour.


VICE PRESIDENT HATCHER:  All right.  And that might leave the possibility that the Friday matters can be dealt with to finality on Thursday, assuming the representatives of the resort management board can make themselves available.  Is there any difficulty with that?


MR HARMER:  Not from our side, your Honour.


MR BRUNO:  No, your Honour.


MR SCOTT:  No difficulty.  I think whether that can occur will depend in large part on the length of witness testimony tomorrow.


VICE PRESIDENT HATCHER:  Yes, well we can sit later if that's necessary.


MR SCOTT:  Yes.  No issue from us.


VICE PRESIDENT HATCHER:  Thank you.  We'll now adjourn and we'll resume at 1.45.

LUNCHEON ADJOURNMENT                                                         [12.41 PM]

RESUMED                                                                                               [1.52 PM]




MR HARMER:  May it please the Commission, the purpose for this afternoon is to address the Commission and hopefully convince the Tribunal that it's appropriate to make a number of changes to the Alpine Resorts Award.


VICE PRESIDENT HATCHER:  So do we have a draft determination for these variations in our materials somewhere?


MR HARMER:  Perhaps as I go through the materials I'll direct the Tribunal to various drafts.  If I can just say this.  There's three components.  The removal of the seasonal loading is reflected in the existing exposure draft through various red lined changes.  The annual leave loading change appears as an annexure to a submission of the AWU, which appears in our submissions as annexure II, and there's a draft determination at AW1.  And the casual overtime change, there's a draft order reflecting that change at annexure NN, to our December 2016 submissions, and I'm happy to go to each in turn but that's the composite of the three changes.  I apologise.  They're sourced from various materials.  So in essence this afternoon we're dealing with what is between the Association and the - - -


VICE PRESIDENT HATCHER:  Sorry, Mr Harmer, what was that annexure again, the casual overtime - - -


MR HARMER:  In terms of casual overtime, our submissions of December 2016 have an annexure which is NN, is the casual overtime provision.




MR HARMER:  And that was prepared by Mr Crawford of the AWU on 17 July 2015.  There's a covering email there, and then there's a draft determination and on the second page at paragraph numbered 5 - - -


VICE PRESIDENT HATCHER:  Just give me a moment.  Sorry, Mr Harmer.


MR HARMER:  You're right.  Thank you, your Honour.  Your Honour, on the second page at paragraph numbered 5, there's a draft change to what is currently 25.2, overtime, of the award and you'll see that there is still an exclusion for snow sports instructors, so they're still cut out even though they're all casual in nature.  But the overtime provision which used to have an exclusion for casuals, that exclusion has been deleted and over time is to apply to casuals, it's suggested in the circumstances set out in that draft determination.


VICE PRESIDENT HATCHER:  Yes, all right, and that works together with the addition of the new 22.4, which sets out the ordinary hours for casual employees?


MR HARMER:  That's correct, your Honour.  And, your Honour, in the exposure draft I think that that is clause 17.2 of the – perhaps I'll confuse everyone if I start going to too many different clauses, but just for completeness.  So - - -


VICE PRESIDENT HATCHER:  I understand from something said earlier that there was some reasonable urgency about this aspect of the case, given that the equipment is – will soon get underway for the next season, or has already started?


MR HARMER:  Yes, your Honour.  We say this with great respect to – (music interruption) - - -


VICE PRESIDENT HATCHER:  Yes, so some degree of urgency, we've - - -


MR HARMER:  Yes, sorry.  It is an indulgence, your Honour, but yes, the recruitment predominantly for the 2018 season is currently underway, particularly for returning staff and that's a large percentage of the workforce, so if this aspect could be resolved reasonably quickly, and if necessary, independent of the wider coverage issue given that this goes to the core award and existing coverage.  That would be appreciated but that's a respectful request.  The second point I need to make is that again, with respect, we're quite unashamed that we come before the Tribunal with a consent position with the AWU.  It arose in essence out of a circumstance whereby employees in the industry were going to go down 8.33 per cent due to the loss of seasonal loading for the reasons I will just quickly summarise in due course, and pragmatically, the AWU and the Association reached agreement to bring all employees at a certain level of overtime up above that loss, in essence.  And the two components are the introduced reduction of annual leave loading and its payout on termination, and the introduction of overtime for casuals, and in essence - - -


VICE PRESIDENT HATCHER:  So when you say, "lost," there'll be a requirement presumably for seasonal employees, to pay them accrued annual leave on termination.


MR HARMER:  Previously there was a requirement to pay accrued annual leave but there was no leave loading on top, and it's the combination of accrued annual leave and the payment out on termination of leave loading that takes one above the 8.33 per cent.


VICE PRESIDENT HATCHER:  So just take a step back.  I thought the position was that the award purported to apply an 8.33 per cent loading in lieu of annual leave.


MR HARMER:  Yes.  In fact, if you like, your Honour, I can – I was proposing to step through all that.  I was just trying to summarise the essence of what we're dealing with.


VICE PRESIDENT HATCHER:  So instead of receiving 8.33 per cent as they go, they will receive one twelfth when the season ends?


MR HARMER:  Yes, which is about 7.67 or something, per cent, and then if one multiplies that by 1.175, one gets something around 9.03 per cent, your Honour.


VICE PRESIDENT HATCHER:  I see.  All right, thank you.


MR HARMER:  So what I am proposing to do, in essence, is to justify that consent arrangement by reference to the Modern Award objectives and in relation to each of the components and the totality, hopefully have the Tribunal make its evaluative judgement in favour of the entire package.  To that end, after a brief opening where I will attempt to explain in detail the background of – not in great detail – I intend to call some brief evidence if the Tribunal will permit, from Mr Girling, just to explain in greater detail the calculations against certain classifications of employees and certain levels of overtime, just to convince the Tribunal that we have redressed the imbalance, if you like.


VICE PRESIDENT HATCHER:  Is there simply a document which could set out the calculation?


MR HARMER:  There is and we'll hand that up.  I just thought it might be easier if it's explained.  And then secondly, I wanted to lead some evidence from Mr Girling, going to the specific elements of evidence that were reflected, for example, before the Full Bench in the casual overtime decision, 5 July 2017, from the example of the hospitality industry and we're just going to try and replicate that evidence so that you have something before you.  It will be very short, in our respectful submission.  And then we'll just make a brief close, and that will be that, subject to the AWU just confirming their position tomorrow morning.


VICE PRESIDENT HATCHER:  All right.  Can I just ascertain the ABI's attitude to this?  Mr Izzo, one potential outcome is that you will have members, if your application is successful, at this award and bound by this outcome.  In those circumstances do you have anything to say about it, in opposition?


MR IZZO:  We don't have any opposition to the changes being sought, no.  Because our members are not presently covered by the coverage of the award, our focus naturally has been on the coverage issue.  But having reviewed the nature of the changes being sought there is no opposition by the organisations I represent.


VICE PRESIDENT HATCHER:  All right, thank you.  Mr Bruno, likewise, do your organisations want to - - -


MR BRUNO:  Likewise.  There's no opposition.


VICE PRESIDENT HATCHER:  All right.  Mr Harmer.


MR HARMER:  So if the Tribunal pleases, we'd seek to rely on our written submissions of 20 September 2016, particularly paragraphs 9 to 11 on pages 7 to 14, and also the affidavit of Gavin Girling of December 2016, paragraphs 10 to 14 address the relevant issues.  Just going to the written submissions by way of summary, at the top of page 9 at paragraph 9.10 there is the 8 May 2015 Full Bench decision confirming in relation to alleged NES inconsistencies and we've got the reference there, and we've attached a copy of that at FF of those same submissions.  There was confirmation that the clause of the award that provides an 8.33 per cent loading to the seasonal employees in lieu of providing them with annual leave was strictly considered by the Tribunal to be contrary to the terms of the National Employment Standard.  Traditionally the seasonal employees who, as you are aware, work no more than, say, up to 13 weeks, in our experience they don't take annual leave and so this had been a part of the history of this unusual industry, again, going back 20 or 30 years, that they would get a payment each day and indeed, each hour, reflecting annual leave.


The Commission took this view.  The view with the respect to the Association initially was that although the Tribunal properly formed that view and that informs, if you like, the future determinations of the Tribunal in relation to our award which is prospective.  We took the view that strictly as a matter of law, that may not be correct.  We initially were going to challenge that, however in negotiation with the AWU we've acquiesced.  We accept the decision of the Tribunal and in looking at that with the AWU, we've seen that we had to strip out, and therefore reduce the pay of all our employees, going forward, once this next award comes into place, by 8.33 per cent.


VICE PRESIDENT HATCHER:  You don't have to.  You don't have to do anything of the sort, but that's - - -


MR HARMER:  That's the consequence, in terms of the face of the award.  We quite acknowledge that.  And so what we've sought to do is to compel that on the face of the award, as a matter of law there would be compensatory adjustments more than exceeding that in the area of casual overtime, and more particularly, the annual leave loading paid out on termination.  So the next point in our submissions there is the inclusion of the annual leave loading for casual employees as part of the package.  If I go to the bottom of page 9 we've set out the calculation.  As I say, again by reason of historical anomaly the 8.33 per cent was a divisor of twelve.  Normally, for annual leave you'd have a divisor of 13 and come up with a figure of 7.69 per cent.  If one adds to that, the 17.5 per cent loading on termination one gets a total of 9.03575 per cent for a standard week, and so we exceed the 8.33 per cent through the annual leave loading paid out on termination, alone.  And the figures I'll go to through Mr Girling just to demonstrate that.  Unfortunately, at a certain - - -


VICE PRESIDENT HATCHER:  So the annual leave loading, by itself, takes it to about 9 per cent?


MR HARMER:  It does.  The difficulty we have is that the resorts used to pay overtime on the loaded rate.  So at a certain level of overtime one still goes into negativity, although it's a very high level of overtime.  And certainly at a standard two hours overtime, one still is above.  But if one gets to, say, twelve hours overtime, you're getting into significant negative and we'll demonstrate that through the figures.  We say overall though, with the consent of the AWU we've attempted to redress the imbalance there.


The next point we address briefly is the fact that the annual leave loading is payable out on termination has been confirmed to be part of the NES by the Federal Court and we've set out that decision at paragraph 9.19 of the submissions.  The AWU has put on an extensive submission about annual leave loading and the fact that our award at the time they put on the submission was only one of nine of the modern awards that didn't have annual leave loading.  We've maintained it's a standard condition, that it should not cause difficulty for the Tribunal to endorse in our award.  And as I say, both for the traditional reasons behind annual leave loading and because of this anomaly we're trying to address, we certainly would suggest that the Tribunal would accept that particular change.


VICE PRESIDENT HATCHER:  One of the, or the major original rationale for annual leave loading was for industries that had a lot of overtime and to ensure that employees didn't suffer a significant loss in income when taking annual leave.  So do I take it from what you said earlier that that's the feature of the seasonal employment under this award?


MR HARMER:  Certainly there is significant overtime.  We have to acknowledge that because of the pragmatic reality of our compressed 13 weeks, it would be extraordinary for someone to take annual leave but there is that possibility and certainly in that case they would have reduced, or missed out, amongst other things, on overtime.  If the Tribunal pleases.


In terms of the other component of the package, the penalty rates, as I say, the decision of 5 July 2017 by the casual, part-time Full Bench to introduce casual overtime to a large number of industries, I think addresses the principles involved.  What we seek to do is to put on brief evidence allowing the Tribunal to say that, look, even in relation to this industry it's entirely appropriate, and complete the package, if you like, in that sense.  So with that in mind, if I could perhaps just go to the evidence and briefly call Mr Gavin Girling back to the box to address those two issues of the calculations and how the annual leave loading provision redresses the imbalance, and the evidence around casual overtime.


VICE PRESIDENT HATCHER:  Just hold on a second, Mr Harmer.  So there was an affidavit of Mr Girling, was there?


MR HARMER:  Sorry, it's his statement and I'll just grab the relevant segment.


VICE PRESIDENT HATCHER:  So that's in exhibit F, is it?


MR HARMER:  Sorry, yes.  That's correct.  And it's paragraphs 9 to 11 but we don't address certain of the issues going to casual overtime in any detail, in that material.  I apologise.  It's paragraphs 10 to 14.


VICE PRESIDENT HATCHER:  All right.  We'll call Mr Girling.


MR HARMER:  Mr Girling, could you please take the stand.


THE ASSOCIATE:  Can you state your name and address?


MR GIRLING:  Gavin Girling, (address supplied).

<GAVIN GIRLING, SWORN                                                               [2.11 PM]

EXAMINATION-IN-CHIEF BY  MR HARMER                               [2.11 PM]


MR HARMER:  Mr Girling, your statement of December 2016 at paragraphs 10 to 13 addresses the components of a consent arrangement tied up with the AWU, in relation to aspects of this award modernisation process, correct?‑‑‑That's correct.


And I think you indicate in your statement at paragraph 10.3 that the consent position with the AWU is attached to your statement at annexure II?‑‑‑That's correct.


In relation to that particular package there's been an attempt by the AWU in conjunction with the Association to redress the loss of the 8.33 per cent seasonal loading?‑‑‑That was the primary driver of that consent arrangement, that's correct.

***        GAVIN GIRLING                                                                                                                        XN  MR HARMER


And the two pieces of recompense are the introduction of annual leave loading and its payout on termination, and casual overtime, correct?‑‑‑More the former than the latter, but that's correct.


Thank you.  And for the purposes of these proceedings, have you prepared some calculations demonstrating the impact and the extent of redress in relation to the loss of the seasonal loading?‑‑‑Yes, that's correct.  I looked at the effect on base hours to overtime hours and then further overtime hours, that's correct.


VICE PRESIDENT HATCHER:  Was that at Perisher, is it, or – at Perisher?‑‑‑I looked at it, your Honour, on the basis of any employee working anywhere on a full-time basis.


MR HARMER:  So it was expressed at various resort worker categories within the broad classifications under the current award, correct?‑‑‑That's correct.


And this is a matter you've discussed with and agreed with all the resorts in the Association, correct?‑‑‑That was part of the consent arrangement, that's correct.


And in that context you've had discussions to the extent of, for example, casual overtime that would be involved, in the way that rostering currently occurs across the resorts?‑‑‑That's correct.


Could I just hand you a copy of a calculation that is headed, "Level 4 Resort Worker, the Loading and Rates Base Hours."  So Mr Girling, can you just inform the Tribunal, is that the set of calculations you've prepared in relation to the loss of the loading?‑‑‑That's correct.


Can I ask you to just - - -


VICE PRESIDENT HATCHER:  I might mark that, Mr Harmer.


MR HARMER:  Yes, thank you, your Honour.


VICE PRESIDENT HATCHER:  So we'll call that the ASAA calculations.  That will be exhibit N.


***        GAVIN GIRLING                                                                                                                        XN  MR HARMER


MR HARMER:  May it please the Commission.  So, Mr Girling, could I just ask you, perhaps, just to go through, page by page, and explain to the Tribunal what it is you've calculated and what you're trying to represent through those calculations?‑‑‑So what I looked at with the calculations was to look at each scenario on the basis of an employee getting paid at the current loaded rates, an employee getting paid on de-loaded rates but accruing annual leave, and the third option being de-loaded rates with annual leave and annual leave loading, and run each of those scenarios for different overtime interactions on those.


So can I ask you perhaps, on the first page where you've got just base hours, 38 flat, is it the case that with the leave loading one comes to an increase of approximately 0.6 per cent?‑‑‑That's correct.  So with leave, as sort of explained before, annual leave loading – annual leave, as a componentry is about 7.6 per cent.  That's the difference between the 8.33, and we see in the second dynamic so that's – there's a negative difference there of 0.5, and then with leave loading added to that it takes it roughly to around a 9 per cent loading, and there's the difference there of 0.66 per cent.


Yes.  So with just annual leave paid out, one still has a loss in the second box there and it's the payout of the annual leave loading on termination that takes it to five, is that correct?‑‑‑That's correct.  In the first scenario with the 8.33 per cent it assumes one month's annual leave, whereas the accrual is generally on four weeks and that's where the small nuance between the 7.6 and the 8.33 comes in.


And in that second page of calculations, I think what you've termed, "moderate overtime," where there's two hours of overtime, there's a lesser margin of some 0.05 per cent, do you see that?‑‑‑Yes, that's correct.


That is because the resorts used to pay overtime on the loaded rate of 8.33 per cent?‑‑‑That's correct.  So in the current scenario with the loaded rates, overtime or any penalties would apply to that loaded rate.  The de-loading of the rates would obviously see a smaller calculation there on the overtime component.


Once you go above two hours of overtime per week, and I think the third calculation shows what's termed, a "medium overtime," of about four hours as I take it, one starts to get into negative returns for the employees, by about 0.64 per cent?‑‑‑Comparative to the current award with the loaded rates, that's correct.


And then at heavy - overtime on the last page, where you're talking about twelve hours of overtime in a week, you're into significant negative for the employees, correct?

***        GAVIN GIRLING                                                                                                                        XN  MR HARMER


DEPUTY PRESIDENT DEAN:  Is that missing a number?‑‑‑Yes, it appears that there's a - - -


COMMISSIONER RIORDAN:  There's no payment for the double time?‑‑‑It appears that the double time component hasn't flowed.  So there's an error with that calculation.


MR HARMER:  So that's potentially significantly overstating the difference, but nevertheless, it's larger than the medium one, is it?‑‑‑The difference is there but it's certainly not to the degree that's being shown on this calculation here.


All right.


DEPUTY PRESIDENT DEAN:  So you're missing a figure in ten hours of overtime at double time for the two components in the de-loaded rates?‑‑‑That's correct, your Honour.


MR HARMER:  And beyond now to say that it's above the medium overtime difference of down 0.64 per cent, do you have any recollection of what the difference was at those hours?


COMMISSIONER RIORDAN:  My calculations, Mr Harmer, indicate that you've got to add $425.60 on for the double time.


MR HARMER:  Thank you, Commissioner.




COMMISSIONER RIORDAN:  No, keep going, Mr Harmer, we'll work this out.


MR HARMER:  Yes, I apologise for that.  No doubt we'll come up with the exact figure shortly.  But the thematic is that it's only when you go into high levels of overtime that you get a significant downward effect but there is nevertheless that downward effect.


VICE PRESIDENT HATCHER:  So how often would there be those high level of overtimes at Perisher, for example?  Would that be common?‑‑‑It wouldn't be common, your Honour, no.

***        GAVIN GIRLING                                                                                                                        XN  MR HARMER


So what would be an average or typical amount of overtime, at least, at Perisher?‑‑‑As per my statement, around 36 per cent of all staff worked any kind of overtime, and about half of those only worked ten hours across the entire season, so – that said, there are some employees that overtime would make a considerable amount but it's – as a proportion of the staff, it's not high.


All right.


MR HARMER:  Are you able to give any evidence as to how many would be above that medium level of four hours overtime?‑‑‑Again, it would be as per the affidavit.  Of those, you know, more than half worked more than ten hours across the entire season.  If you extrapolate that for an average employee working twelve to 14 weeks, it's probably around that moderate level.


Thank you.  Just in relation to overtime can – if I move to the issue of overtime for casual employees, and that's also a new proposed change to the award under the package of the AWU, correct?‑‑‑That's correct.


Can I just put it to you that there are significant levels of casualization within the ski industry, across the lift operators?‑‑‑That would vary between resorts.  Some have a greater level of casualization of their workforce than others.  Perisher is probably at the bottom end, whereas some of the smaller resorts are at the higher end.


And would it be true to say that the smaller resorts might have up to 70 per cent casuals?‑‑‑Yes, that could be true.


Whereas the larger resorts such as Perisher has around 30 per cent casuals?‑‑‑It doesn't always correlate with the size of the resort but definitely at Perisher, as per my statement, about 68 per cent of our staff, so nearly 78 per cent of our staff are employed on a seasonal or permanent basis, compared to only 30 per cent of our staff on casual.


The next thing I would ask you to address is, is it the case that some casuals in the industry would regularly work overtime, if one took overtime as being above, say, ten hours a day or 38 hours across a full week average period?‑‑‑Some would, that's correct.


And again, is that something that tends to be a more significant issue in some of the smaller resorts, to your knowledge?‑‑‑To my knowledge, that's correct.

***        GAVIN GIRLING                                                                                                                        XN  MR HARMER


And less of an issue for larger resorts such as Perisher?‑‑‑Depending on how they construct their workforce.  But at Perisher 70 per cent of our workforce is on non casual contracts.


The next thing I'd ask you to address, is it true that there's not been significant collective bargaining across the resorts in relation to the casual employees we're talking about?‑‑‑That's correct.


The next point, and I ask this of you as a longstanding HR professional, can you just inform the Tribunal how long you've been working in HR?‑‑‑So I've been in HR at Perisher for 24 seasons, and head of HR at Perisher for the last 17 years.


And prior to that you were in HR roles at, I think, Berri Juices and then prior to that, Uncle Ben's?  Have I got that right?‑‑‑No, but most of my career has been within the ski industry.


Thank you.  In your experience, you'd agree with the notion that daily work in excess of eight hours a day can bring about some physical and psychological risks to health?‑‑‑It can do.


You'd also agree that if one was to work in excess of 48 hours a week that could have a deleterious effect on health?‑‑‑Under fatigue management principles, yes.


You'd also agree that casuals in your industry working long hours warranting overtime under the clause we're talking about, would suffer much the same disabilities as permanent staff working overtime hours for the similar dimension?‑‑‑I wouldn't think there'd be any difference between casuals or permanent workforce in terms of working long hours, no.


Would you also agree that the introduction of overtime for casuals would at least provide some incentive for employers in the industry perhaps to roster more carefully and perhaps avoid extensive overtime for casuals?‑‑‑I – yes.


Unless the Tribunal has any questions they were the points I just wanted to lead evidence on.


VICE PRESIDENT HATCHER:  All right, thank you for your evidence, Mr Girling.  You can resume your seat.

<THE WITNESS WITHDREW                                                            [2.27 PM]

***        GAVIN GIRLING                                                                                                                        XN  MR HARMER


MR HARMER:  If the Tribunal pleases, the set of dot points I just went through, or the series of points that Mr Girling just gave evidence in relation to correlate to the seven points that the casual Full Bench in its July 2017 at paragraph 546 noted as being the evidence in relation to the hospitality industry that permitted the Full Bench to grant overtime to casuals in relation to that sector, and I've just led evidence from Mr Girling, either confirming or at least qualifying by reference to our industry, that exact evidence.  And in our respectful submission, combined with the principles reflected in that decision there's sufficient – or I'll come back to the modern award principles or objectives but there's sufficient to warrant the introduction of that specific condition into our award.  Next, I just say that in relation to the loss of the seasonal loading and the calculations, and I apologise that we seem to have dropped out the end of the calculations but the thrust whereby only at reasonably significant levels of overtime would you still have any negativity for employees, is a genuine and significant attempt to redress the loss of the seasonal loading which obviously was a concern both for the resorts but more particularly, the AWU.  And it was in direct negotiation with Mr Crawford of the AWU that we concluded this deal and it was later endorsed by the ACTU as part of a submission to extricate this industry from that very Full Bench casual series of conditions including the four hour minimum start, which also doesn't suit our industry and we're grateful that the Commission permitted that with the support of the ACTU and the AWU.


So against that background in terms of the package and – that package is just a residual of other matters that weren't resolved following a serious of conferences with Deputy President (indistinct) and one, including yourself, your Honour, the Vice President, of which we're grateful that assisted by consent in resolving all outstanding issues otherwise under the award as proposed. So just very briefly, in terms of the modern award's objective, we have addressed that in writing at pages 12 through to 14, so subject to any questions, I won't dwell too much longer on it.  But certainly in relation to 134(1)(a), we've certainly attempted to redress financial disadvantage, we've attempted to introduce overtime for casuals and the annual leave loading and it's payout on termination with the aim of assisting employees, many of whom are award reliant and we quite acknowledge that across our sector – in relation to 134(1)(b), the encouragement of collective bargaining.  We've got to acknowledge it's not been a strong aspect of our industry but it certainly doesn't discourage it in terms of these changes.  In terms of 134 - - -


VICE PRESIDENT HATCHER:  Although the history suggests that there's industry bargaining rather than collective bargaining, doesn't it?


MR HARMER:  There's been a long history of industry bargaining.  There are some collective bargaining agreements formally approved by the Tribunal at resorts such as Mt Buller in particular.  Other than that it's been strong in the maintenance side where some resorts have collective bargaining dealing with maintenance workers, but not in the operational side, in our respectful submission.  In relation to section 134(c), the need to promote social inclusion, again we just say that it certainly doesn't detract from that objective.  The same with 134(d) in relation to flexible modern work practices, productivity efficiency, the overall package.  As employers, we're certainly content it doesn't detract and certainly the AWU strongly supports the package, as they will no doubt confirm tomorrow morning.


In terms of section 134(d)(a), suffice to say the introduction for the overtime for casuals, we'd respectfully suggest, is strongly in alignment with the thrust of that objective.  In terms of section 134(1)(e), the equal pay notion, again we'd say it's not detracted from.  In terms of 134(f), the impact on business productivity, et cetera, again there's a fair increase for employees to redress the loss.  There's overs and unders for employer and employee at certain levels of overtime but overall both the union and the employers are comfortable that that objective is not impacted in our respectful submission.  In terms of 134(g), simply it understands the sustainable modern award system.  Again, annual leave loading and its payout on termination, we think is fairly standard, and following the Full Bench decision we think casual overtime is also fairly standard and consistent with the safety net.


Finally, in terms of 134(h), the impact on wider macro economic issues.  We've got an industry that contributes some billions of dollars per annum to gross domestic product in Australia and it's an industry that will be enhanced b this award being endorsed with those final components, in our respectful submission.  And again, we do, we great respect, seek that we get our award in place in time for this next season if we can.  so unless there's any questions or issues from the Bench, that's all I've sought to address on those points.


VICE PRESIDENT HATCHER:  Mr Harmer, just to speed up that process, can I ask your client, after we've finished the hearings this week to provide a consolidated draft determination which gives effect to all the necessary changes in one go?


MR HARMER:  Definitely, we'll do that.  Thank you.


VICE PRESIDENT HATCHER:  All right.  If there's nothing further on that issue today, can we just turn back to the timetable.  So after having made some inquiries, the witness and representative of the Resort Management Board Coverage can attend on Thursday to present their case.  So I think we'll give a time indication that the witness will be heard some time on the morning of the Thursday.  The other thing we may do is that on Thursday we'll give a starting time of not before 9.30, and we'll sit late on Wednesday to a reasonable extent to continue hearing submissions, but certainly beyond four o'clock.  Mr Izzo, have you got any update as to the position of your witnesses tomorrow?


MR IZZO:  My understanding is that Ms Clark is able to attend on Wednesday from 11 am.




MR IZZO:  Mr Williams, we haven't been able to reach yet but we understand he's driving down on Tuesday night.


VICE PRESIDENT HATCHER:  Can you offer him the alternative of telephone evidence if that would ease him moving into the morning?


MR IZZO:  Certainly.  But assuming he's driving down this evening I think he should be able to do the morning, as well.


VICE PRESIDENT HATCHER:  I see.  All right.  Are there any other procedural matters we can deal with?


MR HARMER:  No, thank you.


VICE PRESIDENT HATCHER:  All right, we'll adjourn now and we'll resume at 10 am tomorrow morning in Melbourne.





CROSS-EXAMINATION BY MR IZZO......................................................... PN1091

CROSS-EXAMINATION BY MR BRUNO.................................................... PN1197

CROSS-EXAMINATION BY MR HARMER................................................ PN1240

THE WITNESS WITHDREW.......................................................................... PN1303

EXHIBIT #J BUNDLE OF PHOTOS OF SKI RESORTS............................ PN1307

IAN FOSTER, AFFIRMED............................................................................... PN1311

EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN1311


CROSS-EXAMINATION BY MR HARMER................................................ PN1328

CROSS-EXAMINATION BY MR BRUNO.................................................... PN1457

RE-EXAMINATION BY MR SCOTT............................................................. PN1484

THE WITNESS WITHDREW.......................................................................... PN1489

JOHN ALAN LEGGETT, AFFIRMED.......................................................... PN1495

EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN1495


CROSS-EXAMINATION BY MR HARMER................................................ PN1516

CROSS-EXAMINATION BY MR BRUNO.................................................... PN1548

RE-EXAMINATION BY MR SCOTT............................................................. PN1579

THE WITNESS WITHDREW.......................................................................... PN1581

GREGG JUSTIN QUINN, AFFIRMED.......................................................... PN1611

EXAMINATION-IN-CHIEF BY MR SCOTT................................................ PN1611


CROSS-EXAMINATION BY MR HARMER................................................ PN1629

CROSS-EXAMINATION BY MR BRUNO.................................................... PN1690

RE-EXAMINATION BY MR SCOTT............................................................. PN1737

THE WITNESS WITHDREW.......................................................................... PN1753

GAVIN GIRLING, SWORN............................................................................. PN1833

EXAMINATION-IN-CHIEF BY  MR HARMER.......................................... PN1833

EXHIBIT #N ASAA CALCULATIONS.......................................................... PN1847

THE WITNESS WITHDREW.......................................................................... PN1885