Adelaide Symphony Orchestra Pty Ltd T/A Adelaide Symphony Orchestra

[2022] FWCA 1538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adelaide Symphony Orchestra Pty Ltd T/A Adelaide Symphony Orchestra

(AG2022/1110)

Adelaide Symphony Orchestra Musicians Agreement 2021-2022

Live performance industry
COMMISSIONER PLATT	ADELAIDE, 9 MAY 2022

Application for approval of the Adelaide Symphony Orchestra Musicians Agreement 2021- 2022

An application has been made for approval of an enterprise agreement known as the Adelaide Symphony Orchestra Musicians Agreement 2021-2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adelaide Symphony Orchestra Pty Ltd T/A Adelaide Symphony Orchestra (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 19 April 2022.

On 21 April 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 9 May 2022. The undertaking deals with the following topics:

· Clause 49 of the Agreement, which deals with Compassionate Leave, will apply in the same circumstances as under s.104 of the Act.

· Casual employees engaged as First and Second Year Tutti Musicians will be paid the minimum rate of pay, including casual loading, that they otherwise would receive under clause 39.2 of the Live Performance Award 2020 (the Award), plus 1%.

· Casual employees will receive the penalty rates under the Agreement (cumulative with the casual loading provided under the Agreement).

· A part-time weekly employee for the purposes of the Agreement will be a part-time weekly employee within the meaning of the Act, and clauses 8 and 38 of the Award.

· Under clause 62.2 of the Agreement, employees will receive 200% of their hourly rate for hours worked between 12 midnight and 7am.

· If an employee performs on more than six Sunday call outs, the company will review the payments made to the employee in the relevant pay period and ensure that the employee is paid what the employee would otherwise be paid under the Award plus 1% for such work.

· If a part-time First Year Tutti Musician works six or more hours per week, including six Sunday call outs, the company will review the payments made to the employee, and ensure that the employee is paid what the employee would otherwise be paid under the Award plus 1% for such work.
· If an employee works a call out on a public holiday, the company will review the payments made to the employee in the pay period and ensure that the employee is paid what the employee would otherwise receive under the Award plus 1% for such work.

· Clause 17.3 of the Agreement, which deals with TOIL, will operate in a manner consistent with clause 12.3 of the Award.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded supported the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The Media, Entertainment & Arts Alliance (MEAA), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter under consideration was an application by the Adelaide Symphony Orchestra Pty Ltd, trading as the Adelaide Symphony Orchestra, for the approval of the Adelaide Symphony Orchestra Musicians Agreement 2021-2022. The application was heard by the Fair Work Commission, an industrial relations tribunal with jurisdiction over such matters. The primary dispute centred around whether the proposed agreement adequately met the legal standards for approval under the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement provided fair terms and conditions for the musicians, and whether it complied with the requirements of the Fair Work Act. Specifically, the Commission had to determine if the agreement ensured the musicians were treated fairly and equitably, and if it included provisions that were consistent with the principles of good faith bargaining and procedural fairness. The Commission also needed to consider whether the agreement was in the best interests of the musicians, particularly in light of the unique circumstances of the arts industry.

In making its decision, the Commission carefully examined the terms of the proposed agreement, including the remuneration, working conditions, and dispute resolution mechanisms. The Commission noted that the agreement had been negotiated in good faith and was in the best interests of the musicians. It found that the agreement provided for fair and reasonable terms and conditions, taking into account the specific needs of the musicians and the broader economic context. The Commission was also satisfied that the agreement complied with the statutory requirements of the Fair Work Act. Therefore, the Commission approved the Adelaide Symphony Orchestra Musicians Agreement 2021-2022.

The final orders of the Commission were that the Adelaide Symphony Orchestra Musicians Agreement 2021-2022 be approved, with the agreement to be registered with the Fair Work Ombudsman. The approval was effective from the date of the decision and would remain in force until superseded by a new agreement or until terminated in accordance with its terms.

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Legal Principle Established