Musicians (Opera and Ballet) Orchestral Award 1998 [Transitional]

[2014] FWCFB 5890

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

Musicians (Opera and Ballet) Orchestral Award 1998 [Transitional]
(AM2014/23)

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

State reference public sector transitional award modernisation - Musicians (Opera and Ballet) Orchestral Award 1998 [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, 30A, 30D - Corporations Act 2001.

[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 Musicians (Opera and Ballet) Orchestral Award 1998 (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 both the Victorian Arts Centre Trust and the Australian Opera and Ballet Orchestra, the two employer respondents to the Award.

[4] The trading activities of 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 Report:

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

[5] The State of Victoria submits that the Australian Opera and Ballet Orchestra was succeeded by the Australian Opera and Ballet Orchestra Limited which is a body corporate under the Corporations Act 2001. It is not a State reference public sector employer within the meaning of s.30A of the Fair Work Act 2009.

[6] It is clear on the basis of this evidence that one employer respondent undertakes substantial trading activities and is a trading corporation within the test established by the relevant authorities. The other employer 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 the matter of Musicians (Opera and Ballet) Orchestral Award 1998 [Transitional], the Fair Work Commission was tasked with determining whether the Award constituted a State reference public sector award under the Fair Work Act 2009. The dispute arose between the Musicians (Opera and Ballet) Orchestral Award 1998 [Transitional] and the employer, who was a national system employer and a trading corporation. The Commission was required to assess the applicability of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, specifically Schedule 6A Items 2 and 6, Schedule 3 Item 2A, and Schedule 5 Item 3, in conjunction with sections 14, 30A, and 30D of the Fair Work Act 2009, as well as relevant provisions of the Corporations Act 2001.

The central legal issue before the Commission was whether the Award in question qualified as a State reference public sector award under the Fair Work Act. This determination hinged on the classification of the employer and the nature of the Award. The Commission had to consider the employer's status as a national system employer and trading corporation, the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act, and the implications of the Corporations Act. The Commission examined the definitions and criteria set out in the Fair Work Act and related legislation to ascertain whether the Award met the necessary conditions to be classified as a State reference public sector award.

Upon thorough examination of the relevant statutory provisions and the specific circumstances of the employer, the Commission concluded that the Award did not qualify as a State reference public sector award. The determination was based on the employer's classification as a national system employer and trading corporation, as well as the specific transitional provisions outlined in the Fair Work (Transitional Provisions and Consequential Amendments) Act and the Fair Work Act. The Commission found that the Award did not meet the criteria for being a State reference public sector award, as it did not align with the statutory definitions and requirements.

Consequently, the Fair Work Commission determined that the Musicians (Opera and Ballet) Orchestral Award 1998 [Transitional] was not a State reference public sector award. This decision was based on the employer's classification and the specific transitional provisions set out in the Fair Work (Transitional Provisions and Consequential Amendments) Act and the Fair Work Act. The Commission's ruling clarified the status of the Award and provided a definitive answer to the legal issues presented in the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established