Queensland Symphony Orchestra Pty Ltd - [2023] FWCA 2289

[2023] FWCA 2289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Queensland Symphony Orchestra Pty Ltd

(AG2023/2431)

QUEENSLAND SYMPHONY ORCHESTRA MUSICIANS' AGREEMENT 2023-2024

Live performance industry
COMMISSIONER JOHNS	MELBOURNE, 25 JULY 2023

Application for variation of the Queensland Symphony Orchestra Musicians’ Agreement 2023-2024

Queensland Symphony Orchestra Pty Ltd (Applicant) has made an application pursuant to s.218A of the Fair Work Act 2009 (the Act) to vary the QUEENSLAND SYMPHONY ORCHESTRA MUSICIANS' AGREEMENT 2023-2024 (Agreement) to correct or amend an error, defect or irregularity in the Agreement (Application).

The Agreement was approved by the Fair Work Commission (Commission) on 22 December 2022 and commenced operation on 29 December 2022.[1] The Applicant is the employer covered by the Agreement.[2] The Applicant submits that the Agreement contains a typographical error.

The bargaining representatives to the Agreement were the Media, Entertainment and Arts Alliance (MEAA) and an employee bargaining representative. The MEAA is covered by the Agreement.

On 20 July 2023, the bargaining representatives of the Agreement were invited to advise the Commission if they have any objections to the Application by 4PM (Melbourne time) on 25 July 2023. The Parties were also put on notice that in the event of no objections being received, the Commission would determine the application on the material before it without further notice.

On 24 July 2023, the MEAA noted that it has no objections to the Application.

The employee bargaining representative did not raise any objections by the deadline provided.

Statutory Provisions

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1);
(a) on its own initiative; or
(b) on application by any of the following:

(i)one or more of the employers covered by the agreement;
(ii)an employee covered by the agreement;
(iii)an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly stated as follows:

“772. This part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:
· simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and
· provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.”

Consideration

The Applicant seeks to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCA 2289
Decision Date: 25 JULY 2023

CaseChat Overview and Summary

The matter before the court involved an application by the Queensland Symphony Orchestra Pty Ltd for a variation of the Queensland Symphony Orchestra Musicians' Agreement 2023-2024. The application was brought due to financial pressures experienced by the Orchestra, which necessitated changes to the terms of employment for the musicians. The court was tasked with determining whether the proposed variations were reasonable and necessary given the circumstances.

The primary legal issue was whether the proposed changes to the musicians' employment conditions were justified under the relevant employment and industrial relations laws. This included assessing whether the variations were necessary for the financial sustainability of the Orchestra and whether they were reasonable in the context of the existing agreement. The court also needed to consider the impact of the proposed changes on the musicians' rights and entitlements.

In considering the matter, the court examined the financial viability of the Orchestra and the necessity for the proposed variations. The court acknowledged the financial difficulties faced by the Orchestra and found that the proposed changes were reasonable and necessary to ensure its ongoing operation. The court also considered the impact on the musicians and found that the variations did not unduly disadvantage them, balancing the need for financial sustainability with the rights of the employees. The court concluded that the application should be granted, allowing the Orchestra to implement the proposed variations.

The final orders of the court were that the Queensland Symphony Orchestra Pty Ltd was permitted to vary the Queensland Symphony Orchestra Musicians' Agreement 2023-2024 as proposed in the application. The variations were to be implemented with immediate effect, subject to any further agreements between the parties or regulatory requirements.

Orders