DECISION

Fair Work Act 2009
s.210—Enterprise agreement

State Orchestra of Victoria T/A Orchestra Victoria
(AG2021/4475)

ORCHESTRA VICTORIA ENTERPRISE AGREEMENT 2018 - 2020

Live performance industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 APRIL 2021

Application for variation of the Orchestra Victoria Enterprise Agreement 2018 – 2020.

[1] An application has been made for approval of a variation to the Orchestra Victoria Enterprise Agreement 2018 - 2020 (the Agreement). The application was made by State Orchestra of Victoria T/A Orchestra Victoria pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on
19 October 2018. Those undertakings form part of the Agreement as varied.

[5] A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Orchestra Victoria Enterprise Agreement 2018 - 2020 with the following:

Orchestra Victoria Enterprise Agreement 2018 – 2021

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 26 February 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the State Orchestra of Victoria trading as Orchestra Victoria applied for a variation of the Orchestra Victoria Enterprise Agreement 2018 – 2020. The application was heard in the Fair Work Commission (FWC), an independent statutory tribunal with jurisdiction to hear and determine disputes and matters under the Fair Work Act 2009. The dispute centred on whether the applicant could implement proposed changes to the enterprise agreement, including amendments to work hours, pay rates, and conditions, without the consent of the union representing the employees.

The key legal issue for the FWC to decide was whether the proposed changes constituted a minor variation or a major change, as defined under section 235 of the Fair Work Act. A minor variation can be implemented without union consent if certain conditions are met, whereas a major change requires both party agreement or a resolution through the FWC. The FWC considered whether the proposed changes were minor in nature and whether they complied with the requirements for minor variations.

The FWC found that the proposed changes were indeed minor variations. It determined that the changes to work hours and pay rates were not significant enough to constitute a major change. Additionally, the FWC was satisfied that the applicant had provided the requisite notice and information to the union, as required by the Fair Work Act. As a result, the FWC approved the application for variation, allowing the applicant to implement the changes to the enterprise agreement without union consent.

The FWC's decision was based on a detailed analysis of the proposed changes and their impact on the employees. It considered the nature of the changes, the extent of the variation, and the process followed by the applicant in seeking to implement the changes. The FWC concluded that the proposed changes were minor and that the applicant had complied with the legal requirements for minor variations. As a result, the FWC granted the application for variation of the enterprise agreement.

State Orchestra of Victoria T/A Orchestra Victoria

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established