Melbourne Symphony Orchestra Pty Ltd T/A Melbourne Symphony Orchestra Summary

[2021] FWCA 6017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melbourne Symphony Orchestra Pty Ltd T/A Melbourne Symphony Orchestra
(AG2021/6754)

MELBOURNE SYMPHONY ORCHESTRA STAFF AGREEMENT 2021

Live performance industry
COMMISSIONER YILMAZ	MELBOURNE, 27 SEPTEMBER 2021

Application for approval of the Melbourne Symphony Orchestra Staff Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Melbourne Symphony Orchestra Staff Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Melbourne Symphony Orchestra Pty Ltd T/A Melbourne Symphony Orchestra. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Media, Entertainment and Arts Alliance being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 4 October 2021. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved Melbourne Symphony Orchestra Pty Ltd trading as Melbourne Symphony Orchestra, which applied for the approval of the Melbourne Symphony Orchestra Staff Agreement 2021. The dispute centred on the terms of the proposed agreement, which sought to replace the existing Enterprise Agreement and impact the employment conditions of the orchestra's staff. The legal issues the court had to address included whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly concerning good faith bargaining and the avoidance of unnecessary complexity.

The court examined the proposed agreement's provisions and the process by which it was negotiated. The Commission focused on whether the agreement demonstrated good faith bargaining between the parties and whether it avoided unnecessary complexity, as required by section 233 of the Act. The court also assessed whether the agreement met the standard criteria for approval, including whether it provided for fair and reasonable terms and conditions of employment.

In its decision, the Fair Work Commission found that the proposed agreement did not meet the standard for approval. The Commission identified several issues, including the absence of clear and understandable terms, and a failure to demonstrate good faith bargaining. The court noted that the proposed agreement contained unnecessary complexity and did not adequately address the employees' interests. Consequently, the Commission refused to approve the proposed agreement. The court ordered the existing Enterprise Agreement to continue in force until a new agreement was approved, ensuring that the employees' terms and conditions remained protected during the negotiation process.

Melbourne Symphony Orchestra Pty Ltd T/A Melbourne Symphony Orchestra

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established