Beautiful: The Carole King Musical Pty Ltd
[2017] FWCA 4910
•25 OCTOBER 2017
| [2017] FWCA 4910 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Beautiful: The Carole King Musical Pty Ltd
(AG2017/3968)
BEAUTIFUL: THE CAROLE KING MUSICAL CASUAL CREW COLLECTIVE AGREEMENT 2017-2018
Live performance industry | |
DEPUTY PRESIDENT BULL | PERTH, 25 OCTOBER 2017 |
Application for approval of the Beautiful: The Carole King Musical Casual Crew Collective Agreement 2017-2018; a greenfields agreement
[1] An application was made on 1 September 2017 in the name of Michael Cassel Group for the approval of an enterprise agreement known as Beautiful: The Carole King Musical Casual Crew Collective Agreement 2017-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single-enterprise greenfields agreement as per s.182(3) of the FW Act. As discussed below the true applicant is the company known as Beautiful: The Carol King Musical Pty Ltd.
[2] The Agreement has been made between the applicant and the Media, Entertainment and Arts Alliance (MEAA). Mr Paul Murphy, Chief Executive Officer of the MEAA filed a Statutory Declaration made on 4 August 2017, stating that the MEAA supports the approval of the Agreement.
[3] The application was accompanied by the Statutory Declaration of Michael Cassel, Producer, made on behalf of the applicant and dated 30 August 2017. The Declaration stated that the Agreement was made on 30 August 2017. The application named a Catherine Cahill as the contact person.
[4] On 27 September 2017, the Commission sent an email to Ms Cahill requesting further information on a number of issues.
1. Identity of the employer
The Form F19 Application identifies the Michael Cassel Group as the Applicant and as the employer to be covered by the Agreement. The Michael Cassel Group are not the employer named in the Agreement at Clause 2.1.
2. Application of agreement outside of NSW
The Form F20 states at 4.2 that the Agreement will only operate in NSW, however under Definitions at Clause 11 of the Agreement, theatres in Victoria are included.
3. Negotiation Process
Clause 7.3 of the Agreement states negotiations between MEAA and LPA started in 2015. Is this correct and in respect to what?
In respect of Clause 7.5; what agreement is Clause 7.5 referring to?
4. Industry Negotiations
With respect to Clause 8; how is this a permitted matter as per s.172(1) of the FW Act?
5. Termination of Agreement
The provision at Clause 3.2 of the Agreement for potential termination of the Agreement does not appear consistent with s.225 of the FW Act.
[5] A response was received from Ms Cahill on 9 October 2017 which provided the following information.
● The F19 names the incorrect employer, which should have stated ‘Beautiful: The Carol King Musical Pty Ltd;’ a replacement F19naming the correct employer was attached.
● The response advised that any reference to theatres in the Agreement other than Sydney Lyric, the Capitol Theatre and Theatre Royal in Sydney should be ‘struck out.’ This in effect results in the Agreement only having application in NSW.
● It was advised that the reference at clause 7.3 of the Agreement that negotiations between the MEAA and Live Performance Australia (LPA) started in 2015 should read 30 June 2016, and further that the reference at clause 7.5 to the MEAA and LPA agreeing to commence negotiations for the next agreement no later than 30th September 2018 should be struck out.
● The reference at clause 8 of the Agreement to the commencement of ‘industry negotiations’ should also be struck out.
● Finally the words contained in clause 3.2 Termination of Agreement should be replaced with the following wording:
“After the expiry date of the agreement, any of the following may apply to the FWC for termination of the agreement:
Beautiful: The Carole King Musical Pty Ltd
An employee covered by the agreement
The Media Entertainment and Arts Alliance”
[6] The response provided by the applicant resolves the expressed concerns of the Commission.
[7] Section 586 of the Fair Work Act 2009 (FW Act) grants a broad discretion for the Commission to amend applications and is set out as follows:
“Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.”
[8] As the MEAA are the nominated union party to the greenfields agreement the Commission requested their views on the amendments to the Agreement as proposed by the applicant. A response from the MEAA was received on 12 October 2017, advising that all information provided by the applicant appeared correct, other than the reference to when negotiations commenced which should read 30 June 2017 and not 2016.
[9] Pursuant to s.586 of the FW Act I will accept the necessary amendments to the application as requested by the applicant, including the further amendment as noted by the MEAA.
[10] Section 172(2) of the FW Act provides, relevantly, that an employer may make an enterprise agreement:
“(b) with one or more relevant employee organisations if:
(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or proposed to establish; and
(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of the employer’s enterprise and will be covered by the agreement.”
[11] As per s.172(4) such an agreement when made is a greenfields agreement.
[12] The application has been made within the 14 day time limit established by subsection 185(4) of the FW Act.
[13] I am further satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.
[14] I am satisfied that MEAA is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.
[15] I note that the Agreement contains a flexibility term at clause 12 and a consultation term at clause 14.
[16] Part 2-4 of the FW Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have examined the contents of the applicant’s Statutory Declaration and the various other materials included with the application, and I am satisfied that the procedural requirements of Part 2-4 of the FW Act have been met in this instance.
[17] The Agreement is approved. In accordance with s.54(1) of the FW Act it will operate 7 days from the date of this approval.The nominal expiry date of the Agreement as indicated in clause 3.2 of the Agreement is 31 December 2018.
DEPUTY PRESIDENT
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