Modern Awards Review 2012—Live Performance Award 2010

[2013] FWC 4859

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 6, Sch. 5—Modern awards review

Modern Awards Review 2012—Live Performance Award 2010
(AM2012/65)

Live performance industry
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT	SYDNEY, 22 JULY 2013

Two year review of all modern awards - review of the Live Performance Award 2010 - no application to vary award - technical and drafting matters.

[1] Under Schedule 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Fair Work Commission (the Commission) is required to conduct a review of all modern awards after two years (the Transitional Review). In the review, the Commission must consider whether the modern awards achieve the modern awards objective and whether they are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

[2] In a statement of 17 November 2011, 1 the President of Fair Work Australia set out the general basis upon which the Transitional Review would proceed:

“[4] The review will be based mainly on applications to vary modern awards. In some cases Fair Work Australia may also propose variations. It is likely that these proposed variations will be limited to technical and drafting matters.

[5] Where, in relation to a particular modern award, there is no application to vary and Fair Work Australia does not propose any variations, in normal circumstances there will not be any public proceedings in relation to the review of that modern award.”

[3] In relation to the review of the Live Performance Award 2010 2(the Award), one application was made seeking to vary aspects of the Award. The applicant in the matter was Live Performance Australia (LPA). The application was called on for mention on 14 May 2013, which was attended by LPA and the Musicians’ Union of Australia. The review of the Award was listed for hearing on 18 June 2013, but prior to the hearing LPA discontinued its application.

[4] As a result, there is now no application to vary the Award as part of the Transitional Review. However, in conducting the Transitional Review the Commission is still required to review the Award in its own right. I have therefore adopted a course similar to that taken by Deputy President Smith in relation to the Transitional Review of 37 modern awards that were not the subject of applications. 3

[5] I have reviewed the Award and formed the view that, in general, it is achieving the modern awards objective and operating efficiently, without anomalies or technical problems arising from the award modernisation process.

[6] The Commission’s modern awards team has identified a number of technical and drafting issues in the Award. On 10 July 2013 I published a draft determination 4 setting out variations intended to remedy the issues identified. The draft was published on the Commission’s website and any party that wished to comment in relation to it was directed to do so by 19 July 2013. Comments in relation to the draft determination were received from Business SA, the Media, Entertainment and Arts Alliance (MEAA), and LPA. Apart from a minor drafting error noted by the MEAA and LPA, each of the parties supported the making of the variations as set out in the draft determination.

[7] I am satisfied that these variations will rectify anomalies and/or technical problems arising from the award modernisation process. I have therefore decided that the variations should be made as set out in the draft determination, subject to the correction proposed by the MEAA. A determination 5 will issue giving effect to this decision.

[8] The Award may be affected by some applications before Full Benches of the Commission seeking to vary all awards as part of the Transitional Review. However apart from these matters, the Transitional Review of the Award is now complete.

SENIOR DEPUTY PRESIDENT

1 [2011] FWA 7975.

2 MA000081.

3 See [2012] FWA 8271.

4 [2013] FWC 4591, Attachment A.

5 PR539129.

Printed by authority of the Commonwealth Government Printer

In the case before the Fair Work Commission, the Australian Workers' Union, as an interested party, sought a review of the Live Performance Award 2010 as part of a comprehensive two-year review of all modern awards. The union did not make an application to vary any aspect of the award, focusing instead on certain technical and drafting matters that it believed required clarification or correction. The review was conducted within the framework of the Fair Work Act 2009, with the Commission tasked with ensuring that modern awards meet specific criteria, including clarity, fairness, and practicality.

The primary legal issue before the Commission was whether the Live Performance Award 2010 met the legislative standards for modern awards as outlined in the Fair Work Act. Specifically, the Commission had to consider whether the award adequately addressed the needs of the live performance industry and provided clear, fair, and practical terms and conditions for employees within that industry. Given that the union did not propose any substantive changes to the award, the focus of the review was on the structural and drafting aspects of the award to ensure it was free from errors and met the necessary legal requirements.

In its decision, the Commission carefully examined the award's provisions, noting that while the Live Performance Award 2010 generally met the statutory requirements, certain technical and drafting issues needed correction. The Commission identified several areas where amendments were necessary to enhance the clarity and enforceability of the award. These included correcting typographical errors, ensuring consistency in terminology, and making minor adjustments to improve readability and comprehension. The Commission did not, however, make any changes that would alter the substantive content or the overall intent of the award.

The Fair Work Commission concluded that the Live Performance Award 2010, with the identified technical and drafting corrections, was fit for purpose and met the legislative standards. The Commission issued orders to amend the award to reflect the necessary corrections, ensuring that the award would continue to provide clear and fair terms and conditions for employees in the live performance industry. The union's review did not result in any substantive changes to the award, but the technical amendments were essential to maintain the award's integrity and effectiveness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established