Melbourne Symphony Orchestra Pty Ltd Trading As MSO

[2025] FWCA 1840

[2025] FWCA 1840

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melbourne Symphony Orchestra Pty Ltd Trading As MSO

(AG2025/1128)

MELBOURNE SYMPHONY ORCHESTRA STAFF AGREEMENT 2024

Live performance industry
COMMISSIONER YILMAZ	MELBOURNE, 30 MAY 2025

Application for approval of the Melbourne Symphony Orchestra Staff Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Melbourne Symphony Orchestra Staff Agreement 2024 (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 Trading As MSO. The Agreement is a single enterprise agreement.

1. I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. An older version of the NERR was provided and it contained a minor difference in the title for the Agreement to the one noted above.  However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

1. 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.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval 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.

1. I observe that clauses 21.1, 36, 39 and 47.6 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 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.

1. Pursuant to s.205(2) and Clause 107 of Schedule 1 of the Act, the model consultation term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

1. Pursuant to s.202(4) and Clause 107 of Schedule 1 of the Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

1. I observe clause 35A of the Agreement provides that workplace delegates’ rights will be as set out in the Award. As the workplace delegates’ rights term is not explicitly contained within the Agreement, pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Live Performance Award 2020 is taken to be a term of the Agreement.

1. 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.

1. The Agreement is approved and in accordance with s.54, will operate from 6 June 2025. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

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Annexure A