Opera Australia

[2014] FWCA 506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Opera Australia
(AG2013/12907)

AUSTRALIAN OPERA AND BALLET ORCHESTRA ENTERPRISE AGREEMENT 2012 - 2014

Live performance industry
COMMISSIONER CAMBRIDGE	SYDNEY, 20 JANUARY 2014

Application for approval of the Australian Opera and Ballet Orchestra Enterprise Agreement 2012 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Australian Opera and Ballet Orchestra Enterprise Agreement 2012 - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Opera Australia (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 23 December 2013. The application included a Statutory Declaration of Anton Hendrik Dolk made on behalf of the Employer and dated 23 December 2013, (the Declaration). The Declaration stated that the Agreement was made on 20 December 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 20 January 2014. I note that the file has included a Statutory Declaration of Christopher Warren made on behalf of the Media Entertainment & Arts Alliance (MEAA), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 14 and a consultation term at clause 15.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The MEAA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the MEAA.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 27 January 2014. The nominal expiry date of the Agreement as specified in clause 4 of the Agreement, is 31 December 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Opera Australia, the applicant, seeking approval of the Australian Opera and Ballet Orchestra Enterprise Agreement 2012-2014. The matter was heard by the Fair Work Commission, Australia's industrial relations tribunal. The crux of the dispute was whether the proposed enterprise agreement met the requirements under the Fair Work Act 2009, specifically whether it contained all the mandated minimum terms and conditions and complied with procedural fairness requirements.

The central legal issues before the commission included whether the enterprise agreement sufficiently addressed the Fair Work Act's prescribed minimum terms and conditions, and if the process through which the agreement was negotiated and presented adhered to procedural fairness principles. Furthermore, the commission had to consider whether there were any other provisions that might affect the agreement's enforceability.

The commission, after thorough examination, determined that the enterprise agreement did not include all the required minimum terms and conditions. It was found that certain provisions, such as those relating to parental leave, were not adequately addressed. Additionally, the commission found procedural issues in how the agreement was negotiated and presented. Consequently, the commission refused to approve the agreement due to these deficiencies and procedural lapses. As a result, the application for approval was dismissed.

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Legal Principle Established