Application by Australian Entertainment Industry Association t/a Live Performance Australia
[2024] FWC 1533
•13 JUNE 2024
[2024] FWC 1533
The attached document replaces the document previously issued with the above code on 13 June 2024.
By deleting the word “and” appearing in clause 28A.2 of the Appendix and inserting “or”
Associate to Justice Hatcher
Dated 20 June 2024
| [2024] FWC 1533 |
| FAIR WORK COMMISSION |
| AMENDED RECOMMENDATION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Application by Australian Entertainment Industry Association t/a Live Performance Australia
(AM2024/10)
LIVE PERFORMANCE AWARD 2020
[MA000081]
| Live performance industry | |
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 13 JUNE 2024 |
Application to vary clauses 27, 28, 29, 30 and 31 of the Live Performance Award 2020 in relation to fixed term contracts.
On 9 February 2024, the Australian Entertainment Industry Association trading as Live Performance Australia (LPA) applied under s 158 of the Fair Work Act 2009 (Cth) (FW Act) to vary the Live Performance Award 2020[1] (Award). LPA seeks to vary the Award to add terms permitting performers, company dancers and musicians to be employed under fixed term contracts in certain circumstances. Such terms are intended to enliven the exception in s 333F(1)(h) of the FW Act to the prohibition in s 333E(1) upon the use of fixed terms contracts in the circumstances described in ss 333E(2)-(4).
The matter was listed for initial directions on 4 March 2024. At that directions hearing, the Media, Entertainment and Arts Alliance (MEAA) appeared and indicated that it opposed LPA’s application in part. The parties agreed there would be utility in convening a conference, to be facilitated by the Commission, to endeavour to narrow the issues in dispute.
The parties filed position papers ahead of the first conference on 22 March 2024. Two further conferences were convened, on 8 and 29 April 2024. The parties were able to reach agreement about some but not all matters. It was agreed that I should make a recommendation as to the appropriate terms of variations to the Award in order to resolve the disputed issues.
The variations which I recommend should be made are contained in the Attachment to this statement. It should be noted that, in respect of ‘run of play’ engagements for weekly performers and company dancers under clause 28.3(a) and musicians under clause 36.1(a), I do not recommend that any changes be made. This is because in my opinion, to the extent that any ‘run of play’ engagement may be undertaken pursuant to a fixed term contract (which appears to me to be doubtful), this is already permitted by the Award without limitation and thus enlivens the exception in s 333F(1)(h). The exception in s 333F(1)(a) is also likely to apply.
I request that LPA and the MEAA advise my chambers by 5.00pm (AEST) on Thursday 20 June 2024 whether they accept the recommendation. If the recommendation is not accepted, I will arrange for LPA’s application to be heard and determined by a Full Bench which will not include myself.
PRESIDENT
Appearances:
S Minster and L Floyd for the Australian Entertainment Industry Association t/a Live Performance Australia
T Borgeest for the Media, Entertainment and Arts Alliance.
Conference details:
2024.
Sydney, in person:
29 April 2024.
Final written submissions:
Australian Entertainment Industry Association t/a Live Performance Australia: 3, 16 May 2024.
Media, Entertainment and Arts Alliance: 13 May 2024.
Attachment
1. Add the following definition to clause 2:
fixed term contract means a contract that includes a term that provides the contract will terminate at the end of an identifiable period (whether or not the contract also includes other terms that provide for circumstances in which it may be terminated before the end of that period).
NOTE: This definition adopts the terms of s 333E(1)(b) of the Act.
2. Delete clauses 27 and 28 and replace with the following:
Types of employment
27.1An employee may be engaged:
(a)on a weekly basis under clauses 28 – Weekly employees and 28A – Weekly employees under fixed term contracts – additional provisions;
(b)on a weekly part-time basis under clause 29 – Weekly part-time employees; or
(d)as a casual under clause 30 – Casual employees.
Weekly employees
28.1A weekly performer or company dancer is an employee who is engaged to work up to a maximum of 38 ordinary hours per week.
28.2A weekly performer or company dancer must be provided with a written statement setting out their classification, applicable pay scale and terms of engagement.
28.3A weekly performer or company dancer may be engaged:
(a)On an ongoing weekly basis;
(b)Weekly for the run of play or plays;
(c)Weekly under fixed term contract(s) in accordance with clause 28A.
NOTE: Section 333E of the Act prohibits the engagement of employees under fixed term contracts in the circumstances described in subsections (2) to (4). Clause 28.3(c) permits the use of fixed term contracts in these circumstances subject to clause 28A. Nothing in clauses 28.3(c) and 28A prohibits or restricts the use of fixed term contracts where any of the exceptions in sections 333F(1)(a)-(g) and (i) of the Act applies and the engagement is otherwise permitted by the Act and this award.
28.4A performer or company dancer may only be engaged for a run of the play or plays if such engagement is confirmed in writing.
28.5For the avoidance of doubt, weekly employees are treated as full time employees for the purpose of the NES, and accrue all relevant leave entitlements such as personal/carer’s leave and annual leave.
3. Insert new clause 28A as follows:
28A.Weekly employees under fixed term contracts – additional provisions
28A.2A weekly performer may be engaged on a series of fixed term contracts, other than for the run of play or plays, if:
(a)the engagement of the performer under the series of fixed term contracts is for the purpose of a single production;
andor(b)the total period of service under the series of fixed term contracts does not exceed two years.
28A.3A weekly company dancer may be engaged under a fixed term contract, or a series of consecutive fixed term contracts, if:
(a)the company dancer is classified on engagement as a Company Dancer Level 1 (Level 7); and
(b)the total period of operation of the contract or series of contracts does not exceed 3 years.
NOTE: A company dancer may progress to a higher classification in accordance with Schedule A – Classification Definitions during their engagement.
28A.4Despite clause 28A.2, a weekly company dancer may be engaged by an employer under a single fixed term contract if:
(a) the company dancer was an employee of the employer as at 30 June 2024;
(b)the fixed term contract is entered into on or after 1 July 2024 but before 31 December 2024; and
(c) the period for which the company dancer has been employed by the employer at the time the fixed term contract is entered into is greater than 2 years;
(d)the term of the fixed term contract does not exceed 12 months.
[1] MA000081.
Printed by authority of the Commonwealth Government Printer
<MA000081 PR775956>
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