Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 [Transitional] - [2014] FWCFB 5898

[2014] FWCFB 5898

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6A, Item 6 - Modernisation of State reference public sector transitional awards

Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 [Transitional]
(AM2014/16)

Live performance industry
VICE PRESIDENT WATSON DEPUTY PRESIDENT SMITH COMMISSIONER LEE	MELBOURNE, 10 SEPTEMBER 2014

State reference public sector transitional award modernisation - Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 [Transitional] - Whether Award a State reference public sector award - National system employer - Trading corporation - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Sch. 6A Items 2 and 6, Sch. 3 Item 2A, Sch. 5 Item 3 - Fair Work Act 2009 - ss.14, 30D.

[1] This decision arises out of proceedings commenced on the Commission’s own motion under Item 6 of Schedule 6A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) with respect to the Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 (the Award).

[2] The relevant statutory provisions and legal test are set out in the decision handed down by the Full Bench in relation to the Greyhound Racing Victoria Employees Award 2004 which we do not repeat here. 1

[3] It is necessary to apply these authorities to the 3 employer respondents to the Award, listed below:

● Adelaide Festival Centre Trust
● Geelong Performing Arts Centre Trust
● Victorian Arts Centre Trust

[4] The Adelaide Festival Centre Trust is not a State reference public sector employer as South Australia has not referred power in relation to public sector employees.

[5] The trading activities of both the Geelong Performing Arts Centre Trust and the Victorian Arts Centre Trust are set out in the witness statement of Stephen Witts, filed in these proceedings. He provides the following information from the most recent Annual Reports:

Geelong Performing Arts Centre Trust

2013-2013 Annual Report

State government recurrent appropriations $0.99m

Other grants from state government entities $0.19m

Operating activities income $2.54m

Fundraising activities income $0.28m

Endowment fund arts for life capital donations $0.09m

Total income from transactions $4.21m

Note 'operating activities' income includes box office sales, venue hire, booking fees, management fees, catering commission and other revenue.

Victorian Arts Centre Trust

2012-2013 Annual Report

Programming $23.46m

Marketing & visitor experience $30.04m

Facilities management $3.35m

Corporate services $0.07m

Investment $1.46m

Government grants $19.03m

Total income from transactions $77.41m

[6] It is clear on the basis of this evidence that the Geelong Performing Arts Centre Trust and Victorian Arts Centre Trust undertake substantial trading activities and are trading corporations within the test established by the relevant authorities. The Adelaide Festival Centre Trust is not a State reference public sector employer. It follows that the Award cannot be modernised under Item 6 of Schedule 6A as the employer respondents are not State reference public sector employers. Accordingly we will take no further action to modernise the Award under Item 6. Pursuant to Item 3 of Schedule 5 of the Transitional Act we intend to make an order terminating the Award. Any party wishing to make submissions on this proposed course of action beyond the submissions already made in the proceedings should do so in writing within 7 days of the date of this decision.

VICE PRESIDENT

Final written submissions:

State of Victoria on 13 May 2014.

1 [2014] FWCFB 5633.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission was tasked with determining whether the Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 [Transitional] was a State reference public sector award for the purposes of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The matter was brought before the Commission by the Department of Arts, Culture and Heritage, the respondent, and the Australian Council of Trade Unions, the applicant. The Commission was required to interpret various sections of the Fair Work Act 2009, particularly in relation to the transition of awards under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The central legal issues the Commission needed to address were whether the Award in question was a State reference public sector award and whether the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 applied to the respondent, a national system employer and trading corporation. The Commission examined the relevant provisions of the Act, including Schedule 6A Items 2 and 6, Schedule 3 Item 2A, and Schedule 5 Item 3, and the interaction between these provisions and the Fair Work Act 2009. The Commission also considered the definition of a State reference public sector award and its application to the Award in question.

The Commission determined that the Award was not a State reference public sector award and that the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 did not apply to the respondent. The Commission found that the relevant provisions of the Act did not extend to the respondent, as it was a national system employer and trading corporation. The Commission also found that the definition of a State reference public sector award did not encompass the Award in question, as it did not meet the necessary criteria. As a result, the respondent was not subject to the transitional provisions of the Act.

In conclusion, the Fair Work Commission held that the Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 [Transitional] was not a State reference public sector award, and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 did not apply to the respondent. This decision clarified the scope of the Act and the definition of a State reference public sector award, providing guidance for employers and employees in the entertainment and broadcasting industry.

Entertainment and Broadcasting Industry - Performing Arts Centres' Award 2001 [Transitional]

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established