Application by the Australian Entertainment Industry Association t/a Live Performance Australia

[2024] FWC 1700

[2024] FWC 1700

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Application by the Australian Entertainment Industry Association t/a Live Performance Australia

(AM2024/10)

LIVE PERFORMANCE AWARD 2020

[MA000081]

Live performance industry
JUSTICE HATCHER, PRESIDENT	SYDNEY, 28 JUNE 2024

Application to vary clauses 27, 28, 29, 30 and 31 of the Live Performance Award 2020 in relation to fixed term contracts – Fair Work Regulations 2009 amended – modern awards objective – provisional view – variation to award – omission of fixed term contract definition in draft determination.

1. 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 include terms permitting performers, company dancers and musicians to be employed under fixed term contracts in certain circumstances. The changes sought 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).

1. On 21 June 2024, I issued a Statement which set out the procedural history of this matter.[2] Relevantly, on 13 June 2024, following a series of conferences with LPA and the Media, Entertainment and Arts Alliance (MEAA), I issued a Recommendation setting out the form of the variations I recommended be made to the Award.[3] Following correspondence from the LPA on 19 June 2024,[4] I issued an Amended Recommendation correcting a drafting error in the proposed variations.[5] On 20 June 2024, my chambers received correspondence from both the LPA and MEAA confirming that my Amended Recommendation was accepted.

1. In my Statement of 21 June 2024, I expressed the provisional view that the variations to the Award proposed in the Amended Recommendation are necessary to achieve the modern awards objective in s 134(1) of the FW Act. A draft determination to give effect to my provisional view was published alongside the Statement. In the absence of any submissions opposing the variation, I indicated the variations would be made on 28 June 2024 and come into operation on 30 June 2024.

1. On 22 June 2024, amendments to the Fair Work Regulations 2024 (FW Regulations) made by the Fair Work Amendment (Fixed Term Contracts) Regulations 2024 came into effect. Relevantly, the amendments extend the operation of an exception under s 333F(1)(i) 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) for live performance industry employees.[6]

1. On 27 June 2024, my Chambers received correspondence from LPA drawing attention to an omission of the definition of ‘fixed term contract’ in the draft determination published on 21 June 2024 which I had recommended be inserted into the Award in the Amended Recommendation.[7] My Chambers contacted LPA, who also advised that there is no longer any urgency regarding the variation because of the above-mentioned amendments to the FW Regulations.

1. An amended draft determination that includes an item inserting the definition of ‘fixed term contract’ into the Award will be published together with this statement. In light of the changes to the draft determination and noting the reduced urgency of the proposed amendments following the changes to the FW Regulations, I will provide interested parties a further period of time to consider the draft determination.

1. If any interested party opposes the variations set out in the draft determination, they must file submissions by 12:00pm (AEST) on Friday, 12 July 2024. In the absence of any submissions opposing the variations, a final determination will be made on 12 July 2024 and will come into operation on 16 July 2024.

PRESIDENT

[1] MA000081.

[2] Statement [2024] FWC 1629, 21 June 2024.

[3] Recommendation [2024] FWC 1533, 13 June 2024.

[4] LPA Correspondence, 19 June 2024.

[5] Amended Recommendation [2024] FWC 1533, 13 June 2024.

[6] See item 3 of schedule 1 of the Fair Work Amendment (Fixed Term Contracts) Regulations 2024.

[7] LPA Correspondence, 27 June 2024.

Printed by authority of the Commonwealth Government Printer

<MA000081  PR776515>