DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adelaide Symphony Orchestra Pty Ltd T/A Adelaide Symphony Orchestra
(AG2018/3354)

ADELAIDE SYMPHONY ORCHESTRA MUSICIANS AGREEMENT 2017 - 2019

Live performance industry
COMMISSIONER PLATT	ADELAIDE, 14 DECEMBER 2018

Application for approval of the Adelaide Symphony Orchestra Musicians Agreement 2017-2019.

[1] An application has been made for approval of an enterprise agreement known as the ADELAIDE SYMPHONY ORCHESTRA MUSICIANS AGREEMENT 2017 – 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adelaide Symphony Orchestra. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 2 November 2018.

[3] On 16 November 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 13 December 2018. The undertaking deals with the following topics:

• For the purpose of clause 48.1, in addition to the leave entitlements under this clause, special leave and community service leave will be provided as per the National Employment Standards (NES).

• For the purpose of clause 55.4 (unauthorised absence), an employee will be entitled to the minimum notice period as required by the NES.

• For the purpose of clause 11, part-time employees will be scheduled for a minimum of two (2) calls, or 6 hours per week, as stipulated in the Live Performance Award 2010 (the Award).

• For the purpose of the Agreement, a call will be deemed to be a minimum of three (3) hours and paid accordingly, regardless of duration.

• For the purpose of clause 42, for the avoidance of doubt, where the Fair Work Act 2009 (Cth) (the Act) provides for a more favourable outcome for an employee in relation to personal/carer’s leave, the employee will receive the benefit of that entitlement under the Act.

• The Employer undertakes to pay employees allowances arising under the Award which were omitted from the Agreement. These allowances include reimbursement allowance, use of a vehicle allowance, expense related allowances, special allowances, instrument allowances and travel allowance, the latter of which further includes accommodation allowance, meals whilst travelling allowance, incidentals whilst travelling allowance and transportation of luggage and instrument allowance.

• For the purpose of clause 69, the Employer will include all expense related allowances and will use the appropriate index for adjustments.

• For the purpose of clause 17.4, audition calls will be a maximum of three (3) hours in accordance with the Award.

[5] 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 did not express any view on the undertaking.

[6] 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.

[7] The “Media, Entertainment and Arts Alliance”, 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.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Adelaide Symphony Orchestra Pty Ltd trading as the Adelaide Symphony Orchestra, applied to the Federal Circuit Court of Australia for approval of the Adelaide Symphony Orchestra Musicians Agreement 2017-2019. The applicant sought approval under the Fair Work Act 2009, arguing that the agreement would provide fair and efficient industrial relations conditions for the employees, who are the musicians, and the employer. The dispute centred around the terms and conditions of employment for the musicians, including matters such as wages, hours of work, and other employment-related provisions.

The primary legal issue before the court was whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the court needed to determine if the agreement met the criteria for being a "better off overall test" (BOOT) agreement, which requires that the agreement be at least as good as the applicable award or modern award. Additionally, the court had to assess whether the agreement facilitated efficient and productive workplace relations and whether it was consistent with the broader objectives of the Fair Work Act, such as promoting higher wages and better conditions for employees.

In its decision, the court examined the provisions of the agreement and compared them with the relevant award. The court found that the agreement was at least as good as the applicable award in terms of wages, hours of work, and other employment conditions. The court also considered the evidence provided by the parties, including the submissions and expert opinions, which supported the assertion that the agreement would lead to more efficient and productive workplace relations. The court concluded that the agreement met the BOOT test and was consistent with the broader objectives of the Fair Work Act. Therefore, the court approved the Adelaide Symphony Orchestra Musicians Agreement 2017-2019.

The court's final order was that the Adelaide Symphony Orchestra Musicians Agreement 2017-2019 be approved under section 233 of the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission, and it would have effect as a registered agreement from the date of the court's approval. This decision provided clarity and certainty for the parties involved and ensured that the agreement would operate as intended, promoting fair and efficient industrial relations for the musicians and the employer.

Adelaide Symphony Orchestra Pty Ltd T/A Adelaide Symphony Orchestra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established