Media, Entertainment and Arts Alliance
[2020] FWC 3755
•21 JULY 2020
| [2020] FWC 3755 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules
Media, Entertainment and Arts Alliance
(D2018/6)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 21 JULY 2020 |
Application for alteration of eligibility Rules.
[1] The Media, Entertainment and Arts Alliance (MEAA) has applied to the Fair Work Commission (Commission) under s.158(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act) to alter its eligibility rules. The application was made on 30 October 2018.
[2] A notice of the application was gazetted in the Commonwealth of Australia Gazette on 8 January 2019.
[3] The proposed change to the rules in the originating application was as follows:
“Add to Rule 3 Industry the words “stadia" and "hotels" and "musicians":
Employees employed in or in connection with, including selling tickets by any means in connection therewith, or in or about, any kind of amusement, whether indoor or outdoor, including:-
(a) cultural complexes, theatres, stadia, hotels, halls, racecourses, sports, exhibitions, agricultural shows, planetaria, animal parks, puppet shows and film exchanges, but excluding any person, employed in or about the foregoing in any capacity in or in connection with the provision, sale, service or preparation of food or drink;
(b) Clubs, licensed clubs and discotheques, but only insofar as such employees are employed as musicians, set and property carpenters and painters, stage crews, mechanists, projectionists, audio and lighting technicians, flymen, props persons, scenic artists, wardrobe including dressers, costume and property workers, stage managers, make-up artists, hairdressers, wigmakers and wig dressers, directors, choreographers and designers;
Delete the words "instrumental musicians other than variety artists" in Rule 4 - Eligibility for Membership Part A (i) as follows:
Provided however that an employee whose work in the main consists of writing news or similar commentaries or an employee whose work in the main consists of writing news and similar commentaries and who also verbally broadcasts these commentaries, instrumental musicians other than variety artists, copyists of music, persons engaged on technical and mechanical duties and included within the constitution of the Professional Radio Employees Institute of Australia, or the constitution of the Postal Telecommunication Technicians Association, or employees included within the constitution of the Federated Clerks Union or officers or employees of the Australian Broadcasting Commission who are qualified by the Constitution of the Australian Broadcasting Commission Staff Association to become other than Associate members of the Australian Broadcasting Commission Staff Association, employees engaged solely as clerks, telephonists, watchmen, caretakers, cleaners, or lift attendants or salesmen, copywriters employed by advertising agencies, shall not be eligible for membership.
Adding the words "stadia" and "hotels" to Rule 4 Part B as follows:
The Association shall also be composed of an unlimited number of employees employed in or in connection with, including selling tickets by any means in connection therewith, or in or about, any kind of amusement, whether indoor or outdoor, including:-
(a) cultural complexes, theatres, stadia, hotels, halls, racecourses, sports, exhibitions, agricultural shows, planetaria, animal parks, puppet shows and film exchanges, but excluding any person employed in or about the foregoing in any capacity in or in connection with the provision, sale, service or preparation of food or drink;
(b) Clubs, licensed clubs and discotheques, but only insofar as such employees are employed as set and property carpenters and painters, stage crews, mechanists, projectionists, audio and lighting technicians, flymen, props persons, scenic artists, wardrobe including dressers, costume and property workers, stage managers, make-up artists, hairdressers, wigmakers and wig dressers, directors, choreographers and designers; ....”
[4] The MEAA contends the reasons for the proposed alteration as to musicians are as follows:
“1. The deletion of the exclusion for instrumental musicians other than variety artists
2. As at 29 October 2018, the MEAA has 800 financial members and 57 unfinancial members who are musicians.
3. The MEAA has the right to enrol and to industrially represent musicians the subject of this application through Part B and Part G of its eligibility rules.
4. The effect of this amendment is to delete an obsolete exclusion for some musicians in Part A of its eligibility rules.
5. The effect of the alterations will put beyond doubt the right of the applicant to enrol
musicians as members of the applicant.”
[5] On 12 February 2019 the Musicians’ Union of Australia (MUA) lodged an objection to the application. The MUA contended that the Commission must not consent to alter the eligibility rules in accordance with s.158(4) of the RO Act for the following reasons:
• persons who would be eligible for membership of the MEAA because of the alteration to the MEAA’s eligibility rules, namely instrumental musicians other than variety artists, could more conveniently belong to the MUA and the MUA would more effectively represent those members;
• the MEAA does not presently have the right to enrol and industrially represent instrumental musicians and that the MUA has historical coverage of instrumental musicians;
• the MUA is recognised as the legitimate representative of instrumental musicians by bodies such as Live Performance Australia and the Department of Home Affairs; and
• the MUA can and does provide representational and advisory services to instrumental musicians and advocates to advance their interests and has the financial resources to do so.
[6] The MUA also submitted that the Commission:
• should not allow the MEAA to provide an undertaking in accordance with s.158(5) of the RO Act to prevent demarcation disputes considering MEAA’s past industrial behaviour including inter alia enrolling members outside the scope of its eligibility rules;
• should refuse to consent to the eligibility rules pursuant to s.158(6) of the RO Act as the alteration contravenes an agreement or understanding between the MEAA and MUA in relation to the right to represent persons engaged in or in connection with the live theatre and concert industry;
• should refuse to consent to the alteration pursuant to s.158(7) of the Act as it would change the effect of the Live Theatre and Concert Industry Representation Order 1996 made by the Australian Industrial Relations Commission which would give rise to a serious risk of a demarcation dispute as described in s.158(7)(b) of the Act; and
• should exercise it discretion to refuse consent to the alteration of the MEAA’s eligibility rules pursuant to s.158(8) of the Act.
[7] On 12 February 2019 the Australian Entertainment Industry Association trading as Live Performance Australia (LPA) also lodged an objection to the application. The LPA said it supported the objections of the MUA. The LPA contends:
• that the MUA is the union to which musicians more conveniently belong;
• the MEAA’s application seeks to disturb an undertaking given to the MUA in 1995 by disrupting the status quo by seeking to represent the industrial interests of musicians in the area traditionally represented by the MUA;
• this would be detrimental to the workplace relations environment of the live theatre and concert industry, especially in musical theatre; and
• the granting of the application would provide MEAA with the ability to represent cast, crew and musicians in musical theatre. At the present time, MEAA only represent cast and crew.
[8] The AWU objected to the alteration on the following bases:
• persons who would be eligible for membership because of the alteration could more conveniently belong to another organisation, that being the AWU;
• the AWU is an organisation that would more effectively represent persons who would be eligible for membership because of the alteration for the purposes of s.158 (4) (b);
• no undertaking could be given that would be appropriate to avoid demarcation disputes which might arise from consent to the alteration being granted;
• the application is contrary to Parliament’s intention in enacting the Act;
• the application is inconsistent with orders of the Australian Industrial Relations Commission about the applicant’s right to represent the industrial interests of a particular class or group of employees;
• the MEAA has mischaracterised the effect of the proposed amendments; and
• the amendments will result in increased industrial disputation between the MEAA and other organisations including the AWU.
[9] On 25 February 2019 I directed parties to confer in relation to the objections. I also directed the parties to file material in the event that the parties were unable to resolve the issues raised by the objectors. The MEAA lodged submissions and material in support of its application 26 April 2019 in accordance with those directions.
[10] The directions were varied on 14 May 2019, 5 August 2019, 24 February 2020 by consent to allow the parties to continue to have without prejudice discussions with the view to resolving the objections.
[11] On 25 February 2020 the MEAA lodged an application to amend its originating application. A letter attached to the application noted the following:
“The application is necessary for MEAA to overcome what we consider to be erroneous objections from the Australian Entertainment Industry Association (AEIA) and the Musicians Union of Australia that MEAA is not eligible to cover and represent nonorchestral (i.e. 'instrumental') musicians.
The purpose of this letter is to advise the Australian Workers Union (AWU) that MEAA's application is not intended - and should not - encroach on employees now covered by the AWU.
Accordingly, MEAA will withdraw from its application before the Commission the proposed words, 'stadia' and 'hotels' from Rule 3, Part A(a) and Rule 4, Part B(a).”
[12] As a result, on 3 March 2020 the AWU withdrew its objection to the application as amended.
[13] The MUA and LPA maintained their objections. On 14 April 2020 the MUA sought a further extension to comply with the directions as the MEAA had put a proposal to it that it had undertaken to respond to by 15 April 2020. An extension was granted.
[14] On 19 April 2020 the MEAA lodged a further application to amend its application. The further application proposed a variation to the MEAA’s rules by adding a new Part I to Rule 4 Eligibility to comprise of the following text:
“Part I:
The Association acknowledges that musicians eligible for membership under any Part of these Rules, other than those persons who are the subject of orders made by the Australian Industrial Relations Commission in 138/97 Print N9439 on 12 March 1997, are also eligible for membership of the Musicians’ Union of Australia.”
[15] The MEAA states that the functions of the new proposed Part I are:
“(i) To provide assurance that the present coverage and membership rights of the MUA are not disturbed or curtailed as a result of MEAA’s variations; and
(ii) In providing such assurance, reflect the long-term status quo of MEAA’s exclusive coverage of orchestral musicians as set out in the Order of Senior Deputy President in 138/97 Print N9439 of 12 March 1997.”
[16] After the application had been lodged on 19 April 2020 the MUA advised that it does not object to the amended application. On 20 April 2020 the LPA also withdrew its objection. As a result, and with the parties’ consent, I have decided to determine the matter on the papers.
[17] Section 158(1) of the RO Act enables the Commission to consent to alteration of the eligibility rules of an organisation if it is satisfied that the alteration has been made under the Rules of the organisation. In this regard, MEAA relies on a statement of its federal president, Mr Simon Collins lodged with its application and further supplementary statements of Mr Collins lodged on 6 December 2018 and 15 July 2020.
[18] The statements demonstrate that the proposed alteration to the eligibility rules as set out in the application was made under the Rules of the MEAA. In accordance with rules 75 of the MEAA Rules, the proposed alterations to MEAA Rule 3, Industry and MEAA Rule 4, Eligibility were notified to MEAA federal councillors on 19 and 24 February 2018. Notice of a postal ballot and the proposed alterations were notified to MEAA federal councillors on 28 September 2018. At the conclusion of the voting on 26 October 2018, there was a clear majority of votes in favour of the proposed amendments to rules 3 and 4.
[19] The organisation appears to have satisfied the requirements of its rule altering procedures, and I am so satisfied.
[20] The organisation is also required to comply with Regulation 121 of the RO Regulations. Regulation 121 sets out as follows:
“121 Application for consent to change of name or alteration of eligibility rules of an organisation (s 158 (1))
(1) An organisation may apply to the FWC for the consent of the FWC under subsection 158(1) of the Act to:
(a) change the name of the organisation; or
(b) alter the eligibility rules of the organisation.
(2) An application under subregulation (1) must:
(a) be in the form set out in the Procedural Rules or in a form otherwise approved by the President; and
(b) set out:
(i) if the application is for consent to change the name of the organisation—the proposed name and the reason for the proposal; or
(ii) if the application is for consent to alter the eligibility rules of the organisation—the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered; and
(c) contain a declaration:
(i) that the change or alteration was made in accordance with the rules of the organisation; and
(ii) stating the action taken under those rules to make the change or alteration; and
(iii) verifying the facts stated in the application; and
(d) be lodged with the FWC; and
(e) if the application is for consent to alter the eligibility rules of the organisation—be lodged with a copy of the rules that are proposed to be altered.
(3) If an application under subregulation (1) is not in accordance with this regulation, the General Manager must tell the applicant how the application or statement does not comply with the regulation.
(4) An organisation that has a web site must publish on its web site a notice that it has lodged the application mentioned in subregulation (1).”
[21] The applications were signed by Mr Paul Murphy, the Chief Executive of the MEAA.
[22] The application by an organisation for consent to the alteration of the eligibility rules of an organisation was in the approved Form F68. The application set out the proposed change, the reason for the change and the effect of the change. The applications contain a declaration stating that the alteration to the eligibility rules were made in accordance with the Rules of the organisation, stating the actions taken under those Rules to make the alteration to the eligibility rules and verifying the facts stated in the applications.
[23] I am satisfied that the organisation has complied with the requirements of Regulation 121 of the RO Regulations. I have decided to consent to the alteration to the eligibility rules under s.158 of the RO Act. The alteration to Rules 3 and 4 of the organisation’s eligibility rules will be as follows:
• Add to Rule 3 Industry the words "musicians":
Employees employed in or in connection with, including selling tickets by any means in connection therewith, or in or about, any kind of amusement, whether indoor or outdoor, including:-
(a) cultural complexes, theatres, halls, racecourses, sports, exhibitions,
agricultural shows, planetaria, animal parks, puppet shows and film exchanges, but excluding any person, employed in or about the foregoing in any capacity in or in connection with the provision, sale, service or preparation of food or drink;
(b) Clubs, licensed clubs and discotheques, but only insofar as such employees are employed as musicians, set and property carpenters and painters, stage crews, mechanists, projectionists, audio and lighting technicians, flymen, props persons, scenic artists, wardrobe including dressers, costume and property workers, stage managers, make-up artists, hairdressers, wigmakers and wig dressers, directors, choreographers and designers;
• Delete the words "instrumental musicians other than variety artists" in Rule 4 - Eligibility for Membership Part A (i) as follows:
Provided however that an employee whose work in the main consists of writing news or similar commentaries or an employee whose work in the main consists of writing news and similar commentaries and who also verbally broadcasts these commentaries, instrumental musicians other than variety artists, copyists of music, persons engaged on technical and mechanical duties and included within the constitution of the Professional Radio Employees Institute of Australia, or the constitution of the Postal Telecommunication Technicians Association, or employees included within the constitution of the Federated Clerks Union or officers or employees of the Australian Broadcasting Commission who are qualified by the Constitution of the Australian Broadcasting Commission Staff Association to become other than Associate members of the Australian Broadcasting Commission Staff Association, employees engaged solely as clerks, telephonists, watchmen, caretakers, cleaners, or lift attendants or salesmen, copywriters employed by advertising agencies, shall not be eligible for membership.
• Adding a new Part I to Rule 4 Eligibility for Membership, to comprise the following text:
Part I:
The Association acknowledges that musicians eligible for membership under any Part of these Rules, other than those persons who are the subject of orders made by the Australian Industrial Relations Commission in 138/97 Print N9439 on 12 March 1997, are also eligible for membership of the Musicians’ Union of Australia.
DEPUTY PRESIDENT
Determined on the papers
Printed by authority of the Commonwealth Government Printer
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