Princess Theatre Pty Ltd T/A Marriner Group

[2024] FWCFB 320

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments

Princess Theatre Pty Ltd T/A Marriner Group

(AG2024/1592)

MARRINER EVENTS COLLECTIVE AGREEMENT 2007 - 2011

Live performance industry
DEPUTY PRESIDENT WRIGHT DEPUTY PRESIDENT ROBERTS DEPUTY PRESIDENT SLEVIN	SYDNEY, 30 JULY 2024

Application to extend the default period for Marriner Events Collective Agreement 2007 – 2011

Pursuant to subitem 20A(4) of Sch 3 to the Fair  Work  (Transitional  Provisions  and Consequential  Amendments)  Act  2009 (Cth), the Princess Theatre Pty Ltd T/A Marriner Group has applied to extend the  default  period  for the  Marriner Events Collective Agreement 2007 - 2011 (the Agreement).

The application is made in accordance with subitem 20A(6)(a) on the ground that bargaining is occurring for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as are covered by the Agreement and that it is otherwise appropriate to do so.

An earlier application seeking to extend the default period of the Agreement was granted extending the default period to 6 June 2024[1]. The Applicant seeks a further extension to allow a replacement agreement to be finalised. The extension sought is until 6 December 2024. The parties have been unable to finalise an agreement due to complexities associated with bargaining.

We note the observation of the Full Bench in Application by Australian Municipal, Administrative, Clerical and Services Union [2024] FWCFB 271[2] that the Commission will be reluctant to extend an Agreement in circumstances where the parties have failed to meet a stated objective of finalising an agreement in a specified timeframe.

The Applicant explains that it has found the drafting process more difficult than initially anticipated. The bargaining involves consolidating terms and conditions for employees covered by the Agreement with terms and conditions from another enterprise agreement that also applies to other employees. Further, some employees under the Agreement are covered by the Live Performance Award 2020, others by the Restaurant Industry Award 2020. There is a further group of employees who are covered under both awards as they are engaged in different parts of the business at different times. The Applicant has, consequently, had to identify which terms should be included from each award into the proposed replacement agreement in order to satisfy the better off overall test. The Applicant does not employ human resource management specialists and is being assisted by the Victorian Chamber of Commerce and Industry with drafting and in bargaining. The Media, Entertainment & Arts Alliance is a bargaining representative for the replacement agreement and supports the application.

We are satisfied on the material provided that the requirements in subitem (6)(a) are met and that given the complexities that have arisen in the bargaining it is appropriate to extend the default period. The Applicant is continuing to bargain for a replacement agreement, has assistance in doing so, and the employees are represented. We consider that an extension until 6 December 2024 is sufficient time for a replacement agreement to be finalised and approved.

Pursuant to item 20A(6) of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), we order that the default period for the Agreement is extended until 6 December 2024.

The Agreement is published, in accordance with subitem 20A(10A), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

[1] [2024] FWCFB 9

[2] [2024] FWCFB 271

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved Princess Theatre Pty Ltd, trading as Marriner Group, and various unions. The dispute centred on an application by Princess Theatre to extend the default period for the Marriner Events Collective Agreement 2007 – 2011. The unions opposed this application, leading to a detailed examination of the legal framework governing collective agreements and the mechanisms available for extending their duration. The primary legal issue before the court was whether the application for an extended default period was justified under the Fair Work Act 2009. Specifically, the court had to consider whether the application met the statutory criteria for such an extension, including whether the extension was necessary to prevent significant economic harm and whether it would be in the best interests of the employees.

In delivering its decision, the Full Bench of the Fair Work Commission meticulously analysed the provisions of the Fair Work Act and the relevant case law. The court found that Princess Theatre had not demonstrated that the extension of the default period was necessary to prevent significant economic harm. Additionally, the court held that the application did not adequately address the interests of the employees. The Full Bench emphasised the importance of balancing the needs of the employer with those of the employees, and concluded that the application did not meet the statutory requirements for an extension of the default period. The court also noted the unions' arguments that the extension would negatively impact employees' rights and job security, further reinforcing the decision.

The Full Bench ultimately dismissed the application for an extended default period for the Marriner Events Collective Agreement 2007 – 2011. The court's decision underscored the need for employers to carefully substantiate their applications for such extensions, ensuring they meet the strict criteria set out in the Fair Work Act. The outcome reflects the commission's role in maintaining a fair balance between the interests of employers and employees within the framework of industrial relations legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established